Attorney General's Opinion 1983-84 #437

VIRGINIA FREEDOM OF INFORMATION ACT. COMMONWEALTH'S ATTORNEY NOT OBLIGATED UNDER SEC. 2.1-346 TO REPRESENT A PRIVATE CITIZEN IN MATTERS RELATING TO VIRGINIA FREEDOM OF INFORMATION ACT.

May 9, 1984

The Honorable Lynn C. Brownley,
Commonwealth's Attorney/County Attorney for Westmoreland County

83-84 437

This is in response to your request for my opinion regarding the Commonwealth's attorney's responsibilities pursuant to § 2.1-346 and §15.1-8.1 of the Code of Virginia. Specifically, you inquire whether the Commonwealth's attorney is obligated under § 2.1-346 to represent a private citizen in matters relating to the Virginia Freedom of Information Act, § 2.1-340 through § 2.1-346.1 (the "Act").

You indicate that it is your opinion that neither § 2.1-346 nor § 15.1-8.1 requires a Commonwealth's attorney to assist a private citizen in a request pursuant to the Act. I concur in your opinion. Section 2.1-346 does not require the Commonwealth's attorney to act on behalf of private parties in proceedings to enforce rights and privileges under the Act. That section merely permits the Commonwealth's attorney to act in his or her official or individual capacity to petition for mandamus or injunction just as a private citizen is permitted to take such action. Such an interpretation is consistent with the clear wording of the Act. Section 2.1-346 states: "Any person, including the Commonwealth's attorney acting in his or her official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by petition for mandamus or injunction. . . ." This language permits a Commonwealth's attorney to obtain information subject to the Act in the same manner that individual citizens are given this right.

In conclusion, the Act does not create any responsibility on the part of the Commonwealth's attorney to assist in citizen requests. In fact, it is the Commonwealth's attorney or county attorney who might ultimately represent a county board or local government agency in an action to obtain records pursuant to the Act. It is unlikely that the General Assembly contemplated the Commonwealth's attorneys acting as private counsel for citizens in actions under the Act. Indeed, for those Commonwealth's attorneys having civil responsibilities under § 15.1-8.1 it would be inconsistent with their official duties under § 15.1-8.1 for them to represent private citizens under the Act.