FOI Advisory Council Opinion AO-10-09

AO-10-09

November 18, 2009

Colonel W. S. (Steve) Flaherty
Superintendent
Department of State Police
Richmond, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of October 2, 2009.

Dear Colonel Flaherty:

You have asked whether subsection G of § 2.2-3706 (subsection G) applies to the Department of State Police (the Department). In full, subsection G reads as follows:

Records kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this chapter except: 1. Those portions of noncriminal incident or other investigative reports or materials containing identifying information of a personal, medical or financial nature provided to a law-enforcement agency where the release of such information would jeopardize the safety or privacy of any person; 2. Those portions of any records containing information related to plans for or resources dedicated to undercover operations; or 3. Records of background investigations of applicants for law-enforcement agency employment or other confidential administrative investigations conducted pursuant to law.

The referenced section, § 15.2-1722, addresses the duty of the sheriff or chief of police of every locality to insure, in addition to other records required by law, the maintenance of adequate personnel, arrest, investigative, reportable incidents, and noncriminal incidents records necessary for the efficient operation of a law-enforcement agency. [Emphasis added.] Section 15.2-1722 contains no reference to the Department or records held by the Department. In light of this language, your inquiry may be rephrased in the alternative: whether the Department, as a law-enforcement agency, may use the exemptions set forth in subsection G, or instead, whether the reference to § 15.2-1722 limits the use of the exemption solely to the records described therein (in effect meaning that only local sheriffs and police departments may invoke subsection G).

In analyzing this question, we must be guided by the policy provisions of the Freedom of Information Act (FOIA) set forth in § 2.2-3700:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

Additionally, it is worthwhile to consider the legislative history of subsection G and § 15.2-1722. Prior to 1999, there was no equivalent to subsection G in FOIA. Instead, outside of FOIA, the prior version of § 15.2-1722 had its own exemption for certain records held by local sheriffs and chiefs of police, which read in relevant part as follows: Except for 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 of arrest, the records required to be maintained by this section shall be exempt from the provisions of [FOIA]. In 1999, the General Assembly changed both § 15.2-1722 and FOIA as it relates to law-enforcement records. Specifically, the General Assembly removed the FOIA exemption language from § 15.2-1722; it created then-new § 2.1-342.2 within FOIA (now § 2.2-3706), which compiles law-enforcement and criminal records exemptions into a single section; it moved certain language from § 15.2-1722 into § 2.1-342.2 (specifically, the part concerning the identity of any individual other than a juvenile who is arrested and charged, and the status of the charge of arrest); and it created subsection G of § 2.1-342.2 (now subsection G of § 2.2-3706).1 The prefatory language of subsection G as it was originally enacted in 1999 read nearly identically to the current language, except it referred then to provisions of this sectionrather than provisions of this chapter (the latter being the current phrasing). The language of the three subdivisions of subsection G, as quoted previously, has remained unchanged.

In examining why these changes were made, further legislative history shows that the General Assembly established a joint subcommittee to study FOIA in 1998. The study continued over two years and issued its final report in 2000.2 That report states that the provision of § 15.2-1722 quoted above

was in direct conflict with the criminal records portion of [FOIA]. It was agreed that the conflict would be resolved in favor of [FOIA] and that any criminal record exemption should be stated in [FOIA] itself. As a result, a single section in [FOIA] was dedicated to access to criminal records by consolidating all criminal records exemptions there.3

The report of the joint subcommittee does not indicate that there was any intent to limit the application of subsection G to local law-enforcement agencies, nor does it indicate any intent to expand it beyond local law-enforcement agencies to include records of the Department as well. It appears that the Department participated in the work of the joint subcommittee, and prepared a review of the proposed draft legislation.4 While the Department's review did consider the changes to FOIA and § 15.2-1722, it was likewise silent regarding whether subsection G would or should apply to the Department's records. In short, it appears that these legislative changes were made as part of a larger review of FOIA as a whole and with the specific intent to resolve a conflict between FOIA and § 15.2-1722. It does not appear that there was any consideration of the question of whether subsection G would apply to the Department's records at the time these changes were made.

In the context of your inquiry, the history of subsection G demonstrates that it was based on a provision of law taken from Title 15.2, a provision that applied solely to records held by local sheriffs and chiefs of police. There was no equivalent provision within FOIA for similar records held by the Department. The plain language of subsection G refers to records kept by law-enforcement agencies as required by § 15.2-1722. It would be an improper reading of the law to ignore the reference to § 15.2-1722. As stated by the Supreme Court of Virginia, legislative enactments are to be read to give meaning to all the words used and cannot be read to render any words meaningless.5 Interpreting subsection G to apply to records held by all law-enforcement agencies without regard to the reference to § 15.2-1722 would violate this principle. With that background, and in light of the narrow construction rule for exemptions set forth in § 2.2-3700, it must be concluded that subsection G applies to records kept as required by § 15.2-1722, necessarily limiting subsection G to certain records of local sheriffs and chiefs of police. Therefore subsection G does not apply to records of the Department. However, while I believe this to be the correct legal analysis, it begs the question of whether it is the intent of the General Assembly to give different access to records held by local sheriffs and chiefs of police than to the same types of records held by the Department. That policy question can only be answered by the General Assembly.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. While not directly relevant to your inquiry, I note that one effect of these changes was to make it so records held pursuant to § 15.2-1722 could no longer be withheld in their entirety, but instead could only be redacted in accordance with the provisions of subsection G.