FOI Advisory Council Opinion AO-07-05

June 7, 2005

Don Rimer
Virginia Beach, Virginia

It has come to the attention of the Virginia Freedom of Information Advisory Council (the Council) that confusion exists regarding Freedom of Information Advisory Opinion 2 (March, 2005)(hereinafter AO 2). The question posed in that opinion was whether § 16.1-301 prohibits a police officer from releasing the name of a juvenile who was killed in a shooting incident involving other police officers. In that opinion you indicated that you had been advised not to release the name of the juvenile, or that of any other juvenile killed or injured, based upon prohibitions contained in § 16.1-301 of the Code of Virginia. Upon further review, it has become apparent that although § 16.1-301 was specifically mentioned as part of the question, reference to that section of the Code was not necessary to answer the question. An answer to the question may be found within the Virginia Freedom of Information Act (FOIA) itself without reference to other laws.

The prior opinion was concerned with the factual situation wherein a juvenile was shot and killed by a police officer. The question asked also presented the hypothetical situation where the police held records concerning juveniles injured or killed by other means. The guidance provided in the Council's advisory opinions is necessarily limited to the factual situations presented and is based solely on those facts. It has been brought to the Council's attention that some are interpreting AO 2 to mean that law enforcement agencies may never release any information concerning juveniles. Such an interpretation of AO 2 is incorrect and unintended. There are factual situations where law enforcement agencies release information concerning juveniles. For example, subdivision 4 of § 52-33 of the Code of Virginia empowers the Missing Children Information Clearinghouse (MCIC) [t]o circulate a monthly bulletin on missing children to the news media, all law-enforcement agencies, and every school in the Commonwealth. Subdivision 5 of the same section empowers the MCIC [t]o provide emergency flyers containing physical and situational descriptions of missing children when requested by law-enforcement agencies. As another example, consider the Virginia Amber Alert Program concerning abducted children. Section 52-34.1 states that an "Amber Agreement" means the voluntary agreement between law-enforcement officials and members of the media whereby a child will be declared abducted, and the public will be notified, and includes all other incidental conditions of the partnership as found appropriate by the Virginia State Police. Subsection C of § 52-34.3 states that [i]n those situations where appropriate, the Virginia State Police shall send the Amber Alert to Virginia's emergency alert system. Participating media are encouraged to issue the alert at designated intervals as specified by the Amber Alert Program. Subsection D of the same section states that [t]he Amber Alert shall include such information as the law-enforcement agency deems appropriate that will assist in the safe recovery of the abducted child. While not an exhaustive list, these examples demonstrate situations in which the release of information concerning juveniles is necessary and desirable in furtherance of public safety and the law enforcement mission.

The specific facts at issue in AO 2 related to a juvenile victim who was shot and killed by a police officer, and hypothetical juveniles who were otherwise injured or killed. The question asked was whether the name of such a juvenile might be released to the public and news media. As noted above, this question may be answered by FOIA alone without reference to other laws. Subsection D of § 2.2-3706 provides that [t]he identity of any victim, witness or undercover officer, or investigative techniques or procedures need not but may be disclosed unless disclosure is prohibited or restricted under § 19.2-11.2. This section does not distinguish between juvenile and adult victims. Furthermore, this subsection allows the discretionary disclosure or withholding of victims' identities, except when disclosure is prohibited under § 19.2-11.2.1 FOIA itself does not prohibit dissemination of the names of victims or witnesses, except as such may be prohibited under § 19.2-11.2.

Generally, subsection A of § 2.2-3704 requires that all public records be subject to inspection and to copying by citizens [e]xcept as otherwise specifically provided by law. In most instances, FOIA operates as a default rule requiring the disclosure of public records, unless otherwise specified by an exemption within FOIA or another statute. If a statute is silent regarding whether a record is open, then that record is subject to FOIA's mandatory disclosure rule. Generally, even records exempted by FOIA may, in the discretion of the custodian, be released except where such disclosure is prohibited by law.2 Thus, there are laws that supersede FOIA and prohibit the disclosure of records which would otherwise have to be disclosed under FOIA.3 However, note the effect of subsection H of § 2.2-3706 which states that [i]n the event of conflict between this section as it relates to requests made under this section and other provisions of law, this section shall control. The General Assembly thus established a separate rule to resolve conflicts between the provisions of § 2.2-3706 and other laws. In this way, § 2.2-3706 of FOIA, on its face, is superior to other conflicting provisions of law. This conflict resolution rule makes clear that the specific provisions of FOIA in § 2.2-3706 supersede more general laws that might otherwise affect disclosure, including § 16.1-301. Therefore, pursuant to the controlling authority of § 2.2-3706, the identity of a juvenile shot and killed by a police officer, or the identity of any other victim, need not but may be disclosed unless disclosure is prohibited or restricted under § 19.2-11.2. Accordingly, AO 2 is rescinded.

Sincerely,

Maria J.K. Everett
Executive Director

1§ 19.2-11.2 reads as follows:
Upon request of any crime victim, neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the Department of Corrections, nor any employee of any of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the victim or a member of the victim's family, except to the extent that disclosure is (i) of the site of the crime, (ii) required by law or Rules of the Supreme Court, (iii) necessary for law-enforcement purposes, or (iv) permitted by the court for good cause.
Except with the written consent of the victim, a law-enforcement agency may not disclose to the public information which directly or indirectly identifies the victim of a crime involving any sexual assault, sexual abuse or family abuse, except to the extent that disclosure is (i) of the site of the crime, (ii) required by law, (iii) necessary for law-enforcement purposes, or (iv) permitted by the court for good cause.
Nothing herein shall limit the right to examine witnesses in a court of law or otherwise affect the conduct of any criminal proceeding.
2See §§ 2.2-3705.1 through -3705.7 (All are prefaced by the following language: "The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:").
3For examples, see § 2.2-706 ("All documentary and other evidence received or maintained by the Department or its agents in connection with specific complaints or investigations under any program of the Office of the State Long-Term Care Ombudsman conducted by or under the Commissioner of that Department shall be confidential and not subject to the Virginia Freedom of Information Act"), § 15.2-2708 ("Information regarding that portion of the funds or liability reserve of a pool established for purposes of satisfying a specific pending and unresolved claim or cause of action shall be exempt from disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.)."), § 32.1-283.4(A)(effective July 1, 2005)("Confidential records and information obtained from private and public entities and provided to the Office of the Chief Medical Examiner during the course of a death investigation shall remain confidential and shall not be subject to the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.)."). There are many other such provisions in the Code of Virginia; an exhaustive list is beyond the scope of this opinion.