Attorney General's Opinion 1991 #013

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

POLICE (STATE): DEPARTMENT OF STATE POLICE.

Terms "inquiry" and criminal "investigation" synonymous for purposes of Department of State Police's authority to conduct investigations when requested by certain officials; State Police public body within meaning of Freedom of Information Act; citizen's request for documents concerning investigation falls within disclosure exemption requirements of Act. State Police expressly prohibited from disclosure of records related to ongoing criminal investigation; may disclose records of completed investigation.

June 21, 1991

The Honorable Clifton A. Woodrum
Member, House of Delegates

1991 13

You ask several questions concerning the applicability of various provisions of The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia, to certain hypothetical facts.

I. Facts

The hypothetical situation you present involves "[a] citizen [who] would request the Department of State Police to provide copies of memoranda, correspondence, interviews and other documents related to a completed inquiry into possible criminal offenses that came to the Department's attention through a story appearing in the media." You further state that "[t]he request would specifically ask for documentation pertaining to who authorized the inquiry, when it was authorized, the purpose of the inquiry and names of possible targets of the inquiry."

You state that I "may also assume that persons were interviewed by agents of the State Police and, following those interviews, the persons who were interviewed reported the facts of the interviews and the content of the interviews to representatives of the media." You ask that I

[a]ssume further that at least one of those persons interviewed initiated the contact with the press shortly after the completion of the interview. That person has been subsequently giving interviews to various reporters and has discussed the contents of the interviews. Another person interviewed confirmed the interview with the press and did not make any assertion of confidentiality as to the contents of the interview.

Based upon these assumed facts, you ask the following three questions:

1. Would the request for information as to documentation pertaining to who authorized the inquiry, when it was authorized, the purpose of the inquiry and the names of the possible targets fall within the exemption provided in §2.1-342(B)(1) of the Code of Virginia?

2. Would the request for documentation pertaining to who authorized the inquiry, when it was authorized, the purpose of the inquiry and the names of possible targets fall within an exemption under §2.1-342(B)(6) . . . ?

3. Bearing in mind that the hypothesis presented contemplates that the inquiry is complete, would the prohibitions contained in §52-8.3 . . . have any application?

II. Applicable Statutes

The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the "Act"), is designed to ensure "the people of this Commonwealth ready access to records in the custody of public officials." Section 2.1-340.1. Section 2.1-342(A) provides that,

[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of this Commonwealth, representatives of newspapers and magazines with circulation in this Commonwealth, and representatives of radio and television stations broadcasting in or into this Commonwealth.

Section 2.1-342(A) further provides:

Public bodies shall not be required to create or prepare a particular requested record if it does not already exist. Public bodies may, but shall not be required to, abstract or summarize information from official records or convert an official record available in one form into another form at the request of the citizen.

The term "official records," as it is used in the Act, is defined as

all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.

Section 2.1-341.

A "public body" is defined as "any of the groups, agencies or organizations enumerated in the definition of 'meeting' as provided in this section, including any committees or subcommittees of the public body created to perform delegated functions of the public body or to advise the public body." Section 2.1-341. The public bodies listed in the definition of "meeting" include "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or any political subdivision of the Commonwealth." Id.

Section 2.1-342(B) provides, in part:

The following records are excluded from the provisions of [the Act] but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

1. Memoranda, correspondence, evidence and complaints related to criminal investigations; reports submitted to the state and local police, to investigators authorized pursuant to §53.1-16 and to the campus police departments of public institutions of higher education as established by Chapter 17 (§ 23-232 et seq.) of Title 23 in confidence; portions of records of local government crime commissions that would identify individuals providing information about crimes or criminal activities under a promise of anonymity; and all records of persons imprisoned in penal institutions in this Commonwealth provided such records relate to the imprisonment. Information in the custody of law-enforcement officials relative to the identity of any individual other than a juvenile who is arrested and charged, and the status of the charge or arrest, shall not be excluded from the provisions of [the Act]. Criminal incident information relating to felony offenses shall not be excluded from the provisions of [the Act]; however, where the release of criminal incident information is likely to jeopardize an ongoing criminal investigation or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until the above-referenced damage is no longer likely to occur from release of the information.

* * *

6. Memoranda, working papers and records compiled specifically for use in litigation or as a part of an active administrative investigation concerning a matter which is properly the subject of an executive or closed meeting under §2.1-344 and material furnished in confidence with respect thereto.

Section 52-8.1 requires the Bureau of Criminal Investigation ("BCI") of the Department of State Police (the "Department" or "State Police") to conduct investigations of any matters referred to it by the Governor. Section 52-8.1 also requires that BCI conduct investigations concerning suspected Class 1, 2 or 3 felonies on request of the Attorney General or any sheriff, chief of police, Commonwealth's attorney or grand jury, and authorizes BCI to investigate other matters when requested by any of these officials. Section 52-8.2 prohibits any such investigation concerning an elected state or local official unless requested by the Governor, the Attorney General or a grand jury.

Section 52-8.3 provides:

Any person employed by a law-enforcement agency or other governmental agency within the Commonwealth who has or has had access in an official capacity to an official written record or report submitted in confidence to the Department of State Police relating to an ongoing criminal investigation, and who uses or knowingly permits another to use such record or report for any purpose not consistent with the exemptions permitted in § 2.1-342, or other provision of state law, shall be guilty of a Class 2 misdemeanor.

The provisions of this section shall not be construed to impede or prohibit full access to information concerning the existence of any criminal investigation or to other verbal disclosures permitted by state police operating procedures.

III. Act Requires Disclosure of "Documents," Not Information; Department "Inquiry" Synonymous with "Criminal Investigation"; Documents Concerning Investigation Exempt from Disclosure Under §2.1-342(B)(1)

The State Police constitute a "public body" within the meaning of the Act. See 2.1-341.

At the outset, it is important to distinguish between a request for information and a request for documents, the latter of which is what is addressed by §2.1-342. The Act guarantees citizen access to existing written documents and other physical records; it specifically does not require a public body to create new records, to abstract or summarize information from existing official records, or convert records from one form to another. Section 2.1-342(A). I assume, therefore, for purposes of this Opinion, that your hypothetical questions are about access to existing records.

Section 2.1-342(B)(1) clearly exempts "[m]emoranda, correspondence, evidence and complaints relating to criminal investigations" from required disclosure under the Act. (Emphasis added.) Your hypothetical question about that section refers to a State Police "inquiry." The first issue, therefore, is whether, for the purposes of the Department's authority under Title 52 and for purposes of the Act, there is a legally significant difference in these two terms.

"Criminal investigation" is not defined in the Act. Dictionaries, however, treat the terms "inquiry" and "investigation" as synonymous. For example: "Investigation. The process of inquiring into or tracking down through inquiry." Black's Law Dictionary 825 (6th ed. 1990). "[I]nquiry . . . The act of inquiring; a question or interrogation; search for information or knowledge; research; investigation." The Webster Encyclopedic Dictionary of the English Language 444 (1967).

The Supreme Court of Virginia has construed the term "investigation" broadly, holding that it encompassed a routine consideration and approval by the State Corporation Commission of a gas pipeline rate application. Commonwealth Gas Pipeline v. Anheuser-Busch, 233 Va. 396, 404, 355 S.E.2d 605, 609 (1987). See also Mason v. Peaslee, 173 Cal. App. 2d 587, 343 P.2d 805, 808 n.2 (1959) ("investigation" means the process of inquiring into or tracking down through inquiry, and "investigate" means to follow up by patient inquiry or observation).

The Department's enabling legislation, moreover, empowers it, within prescribed limitations, to conduct "investigations" of certain matters. See §§52-8.1, 52-8.2. There is no reference in those enabling statutes to "inquiries." If there were a distinction between an investigation and an inquiry, therefore, the Department would lack specific authority to conduct the latter.

It is my opinion, therefore, based on the above, that the terms "inquiry" and "investigation" have the same meaning for purposes of both the Department's authority under Title 52 and the Act.

In your hypothetical situation, the citizen's request pertains to "memoranda, correspondence, interviews and other documents related to [the] completed inquiry into possible criminal offenses." Section 2.1-342(B)(1) exempts from disclosure "[m]emoranda, correspondence, evidence and complaints related to criminal investigations," as well as "reports submitted to the state and local police . . . in confidence." Having concluded that the "inquiry" in your hypothetical situation is synonymous with a "criminal investigation," I am further of the opinion that the documents you describe would fall within the plain meaning of the exemption in §2.1-342(B)(1).

IV. Applicability of Exemption for Documents Compiled as Part of Administrative Investigation Dependent on Facts Not Stated in Hypothetical Situation

You also ask whether the documents sought by your hypothetical citizen would be exempt from disclosure by §2.1-342(B)(6). That exemption applies to "[m]emoranda, working papers and records compiled specifically for use in litigation or as a part of an active administrative investigation concerning a matter which is properly the subject of an executive or closed meeting under §2.1-344."

The primary object of statutory interpretation is to ascertain and give effect to legislative intent. Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Statutes should be read as a whole, with every provision being given effect, if possible. Gallagher v. Commonwealth, 205 Va. 666, 669, 139 S.E.2d 37, 39 (1964). Under these principles, it is my opinion that the General Assembly's use of the phrase "administrative investigation" in §2.1-342(B)(6) implies something different from the "criminal investigation" referred to in 2.1-342(B)(1).

The former exemption, moreover, is applicable only when the documents are compiled for use in litigation or when the subject of the investigation is one which would "properly [be] the subject of an executive meeting." Section 2.1-342(B)(6). Your hypothetical situation does not mention any litigation, and since the Department, while a "public body" under the Act, does not typically hold meetings, the reference to executive meetings in §2.1-342(B)(6) does not readily appear applicable to your hypothetical situation. In my opinion, therefore, the §2.1-342(B)(6) exemption does not apply clearly to the documents you describe.

V. State Police Not Barred by §52-8.3 from Disclosing Records of Completed Investigation

Section 2.1-342(A) makes it clear that disclosure of documents under the Act is required, "[e]xcept as otherwise provided by law." A specific bar to disclosure expressed elsewhere in the Code, therefore, may override the general disclosure requirements imposed by the Act.

Section 52-8.3 contains an express limitation on disclosure of Department records or reports relating to "an ongoing criminal investigation," making such disclosure a misdemeanor. That express prohibition, therefore, overrides the provisions of §2.1-342(B)(1), which exempts disclosure of such records or reports from required disclosure, but permits disclosure at the Department's discretion. Section 52-8.3 has this overriding effect, however, only for records or reports about ongoing investigations. Since your hypothetical situation involves a completed investigation, it is my opinion that §52-8.3 would not apply, and that the Department would be permitted by §2.1-342(A) to disclose the documents you describe, even though, as discussed above, §2.1-342(B)(1) would exempt those documents from required disclosure.