AO-09-26
June 30, 2026
Timothy Moore
Via Electronic Mail
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 email of August 4, 2025.
Dear Mr. Moore:
You have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) and, specifically, the practices of the Office of the Attorney General (OAG) in responding to your requests for criminal investigative records.
Background
On January 27, 2025, you submitted a request to OAG for records regarding a specific individual in connection with, among other things, healthcare fraud allegations, including Medicare and Medicaid fraud. On January 28, 2025, OAG withheld the requested records by citing subsection D of § 2.2-3706.1 of the Code of Virginia, which you believed showed that the relevant exemption pertained to investigations that were ongoing. However, subsection D of § 2.2-3706.1 applies specifically to criminal investigative files relating to proceedings that are not ongoing, and provides in relevant part:
D. Criminal investigative files relating to a criminal investigation or proceeding that is not ongoing are excluded from the mandatory disclosure provisions of this chapter, but may be disclosed by the custodian….
Based on the information you submitted to this office, you made a follow-up request for the same category of records on August 4, 2025. In response to this second request, OAG withheld the records under a different provision, subdivision B 1 of § 2.2-3706 of the Code of Virginia, as “criminal investigative files.” That provision provides the following:
B. Discretionary releases. The following records are excluded from the mandatory disclosure provisions of this chapter, but may be disclosed by the custodian, in his discretion, except where such disclosure is prohibited by law:
1. Criminal investigative files, defined as any documents and information, including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence, relating to a criminal investigation or prosecution not required to be disclosed in accordance with § 2.2-3706.1.
You then sought the opinion of this office regarding four questions, each of which is addressed in turn below.
Your Questions:
1. Does the OAG’s shift from citing subsection D of § 2.2-3706.1 to subdivision B 1 of § 2.2-3706 constitute an acknowledgment that the subject investigation no longer meets the statutory definition of “ongoing,” and did the OAG properly exercise its discretionary authority in withholding the requested records?
2. What standards must agencies apply when exercising discretion under subdivision B 1 of § 2.2-3706 and, in particular, (i) must public interest factors be considered, (ii) is case-specific justification required beyond a categorical exemption citation, and (iii) is the length of an investigation or the absence of charges a relevant factor?
3. Must an agency exercising a discretionary exemption provide specific justification for withholding records, or may it rely solely on a general categorical assertion of exemption?
4. How do FOIA’s mandates for liberal interpretation in favor of access and narrow construction of exemptions apply to an agency’s discretionary invocation of the criminal investigative files exemption?
Question 1: Legal Significance of the Exemption Change
You asked whether the OAG’s shift from citing subsection D of § 2.2-3706.1 to subdivision B 1 of § 2.2-3706 constitutes an acknowledgment that the subject investigation no longer meets the statutory definition of “ongoing” and whether the OAG properly exercised its discretionary authority in withholding the records.
As a threshold matter, the FOIA Advisory Council only has the powers and duties provided in § 30-179 of the Code of Virginia. The Council does not have any investigative or enforcement authority. Determinations of fact, such as whether a particular course of conduct constitutes a legal acknowledgment of a particular circumstance, are generally not within the purview of this office as only the courts have the authority to act as triers of fact. With that limitation in mind, we offer the following guidance.
Subsection D of § 2.2-3706.1 applies, by its own terms, to criminal investigative files relating to an investigation or proceeding that is not ongoing. A public body’s reliance on subsection D of § 2.2-3706.1 therefore carries an inherent implication that the subject investigation is no longer ongoing.1 The plain language of that provision states, in full:
D. Criminal investigative files relating to a criminal investigation or proceeding that is not ongoing are excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian, in his discretion, except as provided in subsection E; however, such records shall be disclosed, by request, to the following persons, regardless of whether any such person is a citizen of the Commonwealth….
Following this provision are five enumerated categories of persons to whom disclosure is mandatory regardless of citizenship:
(1) The victim;
(2) The victim’s immediate family members, if the victim is deceased and the family member is not a person of interest;
(3) The parent or guardian of a minor victim who is not a person of interest;
(4) An attorney representing a petitioner in a writ of habeas corpus or writ of actual innocence proceeding; and
(5) Certain attorneys or pro se litigants seeking inspection for the purpose of a post-conviction or civil proceeding upon providing a sworn declaration or affidavit.
Unless you fall within one of those five enumerated categories, subsection D of § 2.2-3706.1 authorizes a custodian to exercise discretion when determining whether to release criminal investigative files relating to an investigation that is no longer ongoing. Accordingly, with respect to your first question, it appears that the OAG exercised its statutorily granted discretion in withholding the requested records when considering the January and August responses. The custodian’s reliance on subsection D of § 2.2-3706.1 does imply that the investigation no longer meets the statutory definition of “ongoing.” As this office is limited to the facts presented, however, and without additional information, we cannot opine whether your interpretation of the OAG’s conduct in this regard is accurate.
Question 2: Standards for Exercising Discretionary Exemptions
You asked what standards agencies must apply when exercising discretion under subdivision B 1 of § 2.2-3706 and, specifically, whether (i) public interest factors must be considered; (ii) case-specific justification is required beyond a categorical exemption citation; and (iii) whether the length of an investigation or absence of charges is a relevant factor.
This office has previously opined that a custodian’s choice to withhold exempt records is itself an exercise of discretion, just as the choice to disclose those same records would be.2 Both choices constitute exercises of the discretion granted under FOIA.
Accordingly, it is appropriate for a public body, when supported by a relevant statutory provision, to exercise its discretionary authority without conducting a formal balancing test, because no such balancing test is contained within the provisions of FOIA. While your second question identifies three potentially relevant analytical factors, neither subdivision B 1 of § 2.2-3706 nor § 2.2-3706 more generally prescribes a set of factors that public bodies must weigh before utilizing a discretionary exemption. This office has previously addressed this point directly in prior advisory opinions. The following excerpt from Freedom of Information Advisory Opinion 01 (2014) is instructive:
While we do appreciate the public interest represented and the value of transparency in government, FOIA itself contains no such balancing test for exemptions. Instead, the General Assembly has set the default rule that all public records are subject to mandatory disclosure unless exempt or prohibited from release, and then chosen by statute which records are so exempt or prohibited from release. Once a record is determined to be exempt, it does not have to be disclosed, but it still may be disclosed in the discretion of the custodian, unless some other law prohibits its release. Assuming no such prohibition applies, FOIA does not set forth any standards or limitations guiding the use of discretion to disclose exempt records, nor does it establish what might constitute an abuse of that discretion.
Ultimately, the factors you describe, including the length of the investigation and the absence of formal charges, might be things a custodian considers in deciding whether to exercise discretion to release exempt records, and may be relevant to broader questions of public accountability, but there is no statutory requirement to conduct any specific balancing test in deciding whether to exercise discretion to release exempt records.
Question 3: Burden of Justification When Withholding Records
You asked whether an agency exercising a discretionary exemption must provide specific justification for withholding records, or whether it may rely solely on a general categorical assertion of exemption.
When withholding records, a custodian is charged by subdivisions B 1 and 2 of § 2.2-3704 of the Code of Virginia to respond as follows:
B. … Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:
1. The requested records are being entirely withheld. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
2. The requested records are being provided in part and are being withheld in part. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
Both of these subdivisions require that a public body cite any applicable exemption(s) “as to each category of withheld records.” [Emphasis added.]3 The statutory language therefore answers your question in the affirmative, that a public body may cite exemptions categorically. In this specific instance, the OAG confirmed that there were responsive records and cited a single statutory exemption that covered all of the responsive records. This conclusion is also supported by prior opinions of this office, where we opined, in the context of subdivision B 2 of § 2.2-3704, that “[W]e always encourage communication between public bodies and requesters, FOIA does not require further explanation when a public body asserts an exemption beyond identifying the subject matter of withheld portions and citing the specific Code section that authorizes withholding.”4
Note, however, that even a response that invokes an exemption by category alone, without citing the specific provision of law that authorizes withholding, will not necessarily entitle a requester to relief. This principle is consistent with established precedent, primarily Lawrence v. Jenkins, in which the Supreme Court of Virginia held that certain technical shortcomings, such as a custodian’s failure to cite the correct statutory exemption within the five-working-day period, did not entitle the petitioner to a writ of mandamus because even though the public body did not follow FOIA’s procedure, the records were still exempt.5 In Lawrence the court explained that the petitioner ultimately received all the information FOIA required and the custodian had properly exercised his discretion to withhold portions of the records from the outset.6 Hence, even if a response does not strictly comply with the provisions of FOIA, if the exemption does in fact apply to the records in question, then the failure to follow FOIA’s procedure would be a technical rather than substantive violation of FOIA following the holding in Lawrence.
Question 4: Application of FOIA’s Liberal and Narrow Construction Principles
You asked how FOIA’s mandates for liberal interpretation in favor of access and narrow construction of exemptions apply to an agency’s discretionary use of the criminal investigative files exemption.
The Supreme Court of Virginia has directly addressed this question. As the Court observed in applying FOIA’s construction rules, the Act “puts the interpretative thumb on the scale in favor of disclosure,” and “[d]isclosure exemptions must be ‘narrowly construed’ in favor of disclosure.”7 The Court further recognized that “[w]hile VFOIA expresses a clear legislative preference for ‘openness,’ it simultaneously mandates that certain records be excluded from production.”8
This language reflects the interpretive framework codified in FOIA’s policy statement in subsection B of § 2.2-3700, which provides that “[t]he provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities” and that “[a]ny exemption from public access to records or meetings shall be narrowly construed.” We have stated previously that “where there is a choice between an interpretation of a FOIA provision that favors disclosure and one that favors withholding, this office must choose the interpretation that favors disclosure. Where the statutory language is clear and unambiguous, the plain meaning of the statute controls.”9
This office has previously explained that the narrow construction requirement is not displaced simply because an exemption is characterized as discretionary. The Supreme Court of Virginia confirmed this principle in Gloss v. Wheeler, which reaffirmed that the statutory preference for open government applies to the interpretation of all FOIA provisions, including exemptions that afford custodians discretionary authority.10
Applied to the criminal investigative files exemption, these principles mean that a public body must construe the scope of subdivision B 1 of § 2.2-3706 and subsection D of § 2.2-3706.1 narrowly, and that any ambiguity as to whether a particular record falls within the exemption should be resolved in favor of disclosure. While FOIA does not require a public body to conduct a public interest balancing test before invoking a discretionary exemption, the Act’s inherent preference for openness provides an important backdrop for understanding the spirit in which custodians are expected to exercise their discretionary authority.
Conclusion
To summarize this office’s responses to your four questions: (1) The OAG’s reliance on subsection D of § 2.2-3706.1 does imply that the subject investigation may no longer meet the statutory definition of “ongoing,”; (2) FOIA does not require a custodian to conduct a public interest balancing test or consider specific factors, such as the length of the investigation or absence of charges, before exercising its discretion to withhold records under subdivision B 1 of § 2.2-3706; (3) a custodian must satisfy the requirements of subdivisions B 1 and 2 of § 2.2-3704 by identifying withheld records with reasonable particularity and citing the specific Code section authorizing withholding, but need not provide any further justification for the withholding; and (4) FOIA’s liberal and narrow construction principles require that the criminal investigative files exemption be construed narrowly in favor of disclosure, and that any ambiguity be resolved in favor of access.
This office’s authority is limited to providing guidance and education on the requirements of FOIA and does not include the authority to enforce or compel compliance with FOIA. Enforcement of FOIA and determinations of fact remain with the courts of Virginia pursuant to § 2.2-3713 of the Code of Virginia.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Matteo Murrelle
Staff Attorney
Alan Gernhardt, Esq.
Executive Director
1Note that subsection C of § 2.2-3706.1 provides a corresponding exemption for criminal investigative files that are ongoing (“Criminal investigative files relating to an ongoing criminal investigation or proceeding are excluded from the mandatory disclosure provisions of this chapter, but may be disclosed by the custodian, in his discretion, except as provided in subsection E or where such disclosure is prohibited by law.”).
2Freedom of Information Advisory Opinion 09 (2008).
3Va. Code § 2.2-3704
4Freedom of Information Advisory Opinion 09 (2019).
5See Lawrence v. Jenkins, 258 Va. 598 (1999).
6Id.
7Virginia Dep’t of Corrections v. Surovell, 290 Va. 255, 263 (2015) (quoting Fitzgerald v. Loudoun County Sheriff’s Office, 289 Va. 499, 505 (2015)).
8Id.
9Freedom of Information Advisory Opinion 03 (2025).
10Gloss v. Wheeler, 301 Va. 258, 279, (2023) (citing Fitzgerald v. Loudoun Cnty. Sheriff’s Off., 289 Va. 499, 505, (2015)).