Virginia Coalition for Open Government

FOI Advisory Council Opinion AO-13-26

Type:
Topics:

The invocation of certain exemptions by a public body in §§ 2.2-3706 and 2.2-3706.1 allows specific information to be mandatorily disclosable, disclosed in the custodian’s discretion, or prohibited from release. Accordingly, each element of the incident-level data requested requires analysis of whether, and to what extent, those provisions permit or require disclosure of criminal investigative and criminal incident information.

AO-13-26

October 29, 2026

Bryan Swan
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 June 2, 2025.

I. Factual Background

You have asked for an advisory opinion from this office pursuant to an email exchange between you and the Prince William County Police Department (PWCPD or the Department) Freedom of Information officer (FOIA officer) concerning a request for what you described as “incident-level data” regarding police-involved shootings.

A. Your Initial Request

In the email exchange with the Department, you sought a comprehensive dataset of all police-involved shooting incidents involving PWCPD officers from January 1, 2015, through May 7, 2025, pursuant to the Virginia Freedom of Information Act (FOIA). You then asked that the response be provided in a structured Excel spreadsheet and identified nine specific data fields constituting what you described as “incident-level data.” FOIA does not define the phrase “incident-level data,” and it appears to be used as a term of art with potentially broad meaning, which will be further examined in this opinion. For purposes of this opinion, “incident-level data” is construed to mean the nine enumerated data fields you identified in your request:

  • Date of incident
  • Full names and badge numbers of the involved officer(s)
  • Type of weapon or threat allegedly presented by the subject
  • Whether any action was taken against the officer(s) (and, if so, whether administrative or criminal)
  • Number of rounds fired by each officer (if any)
  • Whether a fatality resulted
  • Gender of the victim
  • Cause of death
  • Reason for the initial call or encounter

B. The Prince William County Police Department’s Response

1. Creation of an Excel Spreadsheet

The Department began its response to you by addressing the creation of an Excel spreadsheet with the enumerated fields you requested, concluding that, “The data you’re requesting, suitable for public release, is already available.” The Department cited the following exemptions:

  • Va. Code § 2.2-3704 (D) for the proposition that a public body need not create a new record.
  • Va. Code § 2.2-3704 (F) (incorrectly cited by the Department)1 and (G) regarding access to electronic databases, excision of exempt fields, and provision of records in available formats.
  • Va. Code § 52-28.2 as support for the nonrelease of certain information (e.g., officer name and badge number) related to officer-involved shooting (OIS) incident reporting.2

PWCPD went on to assert that several online resources contained the demographic information you requested.3 Finally, the FOIA officer asserted that PWCPD does not maintain a separate record or spreadsheet containing “[J]ust the historic demographics of officers involved in these types of incidents” and that the information is kept in individual officers’ administrative files. The FOIA officer further stated that completing your request would therefore require either the creation of a new record or the release of individual administrative records that would need to be reviewed by a specific section within the Department.

2. Officer Names and Badge Numbers

After its response related to the Excel spreadsheet, PWCPD focused narrowly on the officer names and badge numbers in OIS, citing several interrelated exemptions:

  • Va. Code § 2.2-3706 (B) and § 2.2-3706 (B)(9) for withholding certain law-enforcement and administrative investigative records.4
  • Va. Code § 8.01-50 relating to possible wrongful death litigation submitted within two years of an incident.5
  • Va. Code § 2.2-3706.1 (F) as requiring notice to victims or their families before the release of criminal investigative files.
  • Va. Code § 2.2-3706.1 (E)(3) for an exception to the release of criminal investigative files when such release would cause an unwarranted invasion of personal privacy.
  • Va. Code § 2.2-3706.1 (D) relating to the mandatory recipients of criminal investigative files.

You were told that the Department’s long-standing policy is to withhold officer names and badge numbers in OIS. The Department cited, among other things, public policy arguments that support its own disclosure policy, arguing that while FOIA demands transparency, the Department weighs the safety of its officers when contemplating records disclosure. PWCPD also attached the Virginia Incident-Based Reporting (IBR) User Manual and General Order 27.01 (governing the use of deadly force under § 19.2-83.5 of the Code of Virginia). The Department explained that it completes at least two IBR reports for each OIS: one listing the subject as the victim and one listing the subject as the offender.

Next, the FOIA officer directed you to the Virginia State Police website and the PWCPD Annual Report, stating that data such as the date of incident, weapons, actions taken against involved officers, gender, and the reason for the initial call had already been released publicly and could be “gleaned” from open-source information like circuit court records. He went on to state that although the court records do not include the police reports, they do contain search warrants, charging documents, affidavits, and other materials providing additional details regarding how each matter was adjudicated. The FOIA officer included a list of what appears to be some or all of the OIS on record with the Department. You responded that the identified public sources were wholly insufficient to satisfy your initial request while also requiring you to submit further FOIA requests to acquire the incident-level data.6

The Department indicated that disclosure of officer names and badge numbers would implicate an invasion of personal privacy under subdivision E 3 of § 2.2-3706.1 of the Code of Virginia and that victim notification under subsection F of § 2.2-3706.1 would be required before release because one of the two IBR incident reports lists involved parties as victims. The Department further asserted that responsive information was excluded from mandatory release and repeatedly relied on discretionary language to withhold the entirety of the requested information.

With respect to officer identification specifically, the Department stated that since 2020, its policy was not to release the names of officers involved in fatal shootings.

Additionally, the Department provided you with a list of some of the OIS from your specified time frame, without the incident-level data you requested. The list was included to assist you with your search while the Department continued to withhold the incident-level data you sought. It appears that the list went year by year from 2015–2025 listing some of the OIS that occurred during each year. In the email exchange, the Department did not expressly state why it included this information in the format of a list. From the context of the exchange, it appears that the Department may have included the OIS list to assist you in searching for records of the Circuit Court of Prince William County.

FOIA addresses access to public records but does not require that a public body answer questions or provide explanations, nor does it require the creation of new records. Specifically, subsection D of § 2.2-3704 of the Code of Virginia provides that “[s]ubject to the provisions of subsection G, no public body shall be required to create a new record if the record does not already exist.” The relevant provision of subsection G states that “[t]he excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation, or compilation of a new public record.” Therefore, in the context of this opinion, we must keep in mind that the incident-level data you seek is information that might be contained in a public record, but if it does not already exist, the Department does not have to create a new record to satisfy your request. If FOIA does apply, the applicable provisions cited by the Department generally render disclosure discretionary rather than mandatory. If responsive records exist, they must be disclosed unless exempt. In this instance, it appears that there are relevant exemptions that would allow certain records to be withheld.

With respect to officer names and badge numbers, the Department cited subdivision B 9 of § 2.2-3706 of the Code of Virginia and subsection B of § 2.2-3706 as the applicable statutory exemptions. Importantly, the Department did not assert that disclosure was prohibited by law; it only invoked its discretion to withhold. The FOIA Council has repeatedly recognized that the decision to withhold under a discretionary exemption is an exercise of discretion that must be made on the facts, and FOIA’s policy of liberal construction remains the governing interpretive principle, ultimately favoring openness.

Finally, regarding the Department’s assertion that compliance would require the creation of a new record under subsection D of § 2.2-3704, that position must be evaluated alongside the electronic records provision in subsection G of § 2.2-3704. Where the requested data elements already exist within the public body’s electronic systems, FOIA requires reasonable efforts to provide the records (or portions thereof) in the format requested, including by producing existing electronic records using available software with redactions as appropriate. FOIA further requires that nonexempt portions of an existing record be produced even if other portions of such record are properly exempt. In that case, a public body should excise the exempt fields and produce the redacted record to the requester. The dispositive question, therefore, is whether producing the requested spreadsheet would require generating a new record that does not exist. It appears that in order to respond to your request, the Department would have to create a new record (which is not required by FOIA) because the incident-level data responsive to your request is contained within several different data sources.7

II. Analysis

A. Statutory Framework: Criminal Investigative Files, Criminal Incident Information, and “Incident-Level Data”

You have requested the opinion of this office regarding the extent to which incident-level data concerning OIS contained within certain police records is disclosable under FOIA. In research on police use of force, it appears that the term “incident-level data” is used broadly to describe record sets in which each row corresponds to a discrete reported event, as distinct from aggregate statistics or summary reports.8 While FOIA does not use this term, the statute distinguishes between “criminal incident information,” subject to mandatory disclosure under subsection B of § 2.2-3706.1 of the Code of Virginia, and “criminal investigative files,” generally excluded from FOIA’s mandatory provisions and subject only to discretionary release under subsections C and D of § 2.2-3706.1. The operative question, therefore, is how your nine-field request maps onto those statutory categories. For purposes of this opinion, “incident-level data” is construed to mean the nine enumerated data fields you identified in your request.

FOIA defines “criminal investigative files” in subsection A of § 2.2-3706.1 as “any documents and information . . . relating to a criminal investigation or prosecution, other than criminal incident information subject to disclosure in accordance with subsection B.” This definition is deliberately expansive and encompasses both investigative materials and documents and information compiled in electronic systems, so long as they relate to a criminal investigation or prosecution and do not fall within the separate category of “criminal incident information” that must be provided under subsection B of § 2.2-3706.1.

Subdivision B 1 of § 2.2-3706 of the Code of Virginia is equally critical. It provides a discretionary exemption from mandatory disclosure for “[c]riminal 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.”

These provisions must be read together as they work in conjunction to generally exempt criminal investigative files from mandatory public disclosure, except for mandatory disclosure to certain specific persons once the matter is no longer ongoing. Specifically, if an investigation or prosecution is ongoing, then the criminal investigative file is exempt pursuant to both subsection C of § 2.2-3706.1 and subdivision B 1 of § 2.2-3706. If the investigation is not ongoing, then the records are generally exempt under both subsection D of § 2.2-3706.1 and subdivision B 1 of § 2.2-3706, except if the requester is one of the persons entitled to access under subdivisions D 1 through 5 of § 2.2-3706.1. In a situation where subsection E of § 2.2-3706.1 applies, subsections C and D of that section do not apply, but subdivision B 1 of § 2.2-3706 does apply (so the criminal investigative file would still be exempt from disclosure).

Additionally, FOIA does impose limited mandatory disclosure obligations within the law-enforcement context. Subsection A of § 2.2-3706 enumerates certain records that “shall” be provided, including adult arrestee booking photographs (subject to limitations), identity and charge information for arrested persons, and certain unattended death investigation records. In addition, subsection B of § 2.2-3706.1 requires disclosure of “criminal incident information relating to felony offenses” and specifies five minimum elements that must be produced. Read together, these provisions reflect that FOIA does not treat criminal investigative files as an impenetrable black box, but its mandatory disclosure obligations are specific and limited. The full text of subsection B of § 2.2-3706.1 provides:

All public bodies engaged in criminal law-enforcement activities shall provide records and information when requested in accordance with the provisions of this chapter regarding criminal incident information relating to felony offenses contained in any report, notes, electronic communication, or other document, including filings through an incident-based reporting system, which shall include:

1. A general description of the criminal activity reported;

2. The date and time the alleged crime was committed;

3. The general location where the alleged crime was committed;

4. The identity of the investigating officer or other point of contact; and

5. A description of any injuries suffered or property damaged or stolen.

A verbal response as agreed to by the requester and the public body is sufficient to satisfy the requirements of this subsection.

Here, the nine data fields you requested appear to describe information maintained by the Department in connection with OIS investigations. To the extent those data fields are contained in, extracted from, or otherwise derived from records “relating to a criminal investigation or prosecution,” they are encompassed within the definition of “criminal investigative file” and are therefore exempt from public disclosure unless they fall within one of FOIA’s mandatory disclosure provisions. Accordingly, the fact that the requested data fields may be contained in “public records” does not itself resolve whether they must be produced; after establishing that the information you seek is contained in existing public records, the next threshold question is whether the public records are exempt or prohibited from release.

Because the request enumerates nine data fields, a field-by-field comparison against the mandatory elements of subsection B of § 2.2-3706.1 is instructive. That comparison, conducted in Section B of this opinion, illustrates where the requested incident-level data corresponds to a mandatory disclosure obligation and where it falls within the discretionary criminal investigative file exemption. Officer names and badge numbers are addressed separately in Section C of this opinion given the additional analytical complexity they present.

B. Field-by-Field Comparison

The following analysis applies the statutory framework established in Section A of this opinion to each of the nine data fields you requested, in the order in which they were enumerated. Where a data field corresponds directly to a mandatory disclosure element under subsection B of § 2.2-3706.1 of the Code of Virginia, that correspondence is noted. Where a field falls outside the mandatory elements, the applicable discretionary exemption is identified.

Field 1 — Date of Incident

Field 1 corresponds directly to the requirement of subdivision B 2 of § 2.2-3706.1 to provide “[t]he date and time” of the alleged crime. The date of some OIS incidents appears to be mandatorily disclosable as criminal incident information if the underlying criminal act is a felony.

Field 2 — Full Names and Badge Numbers of Involved Officers

See Section C of this opinion for full analysis of this data field. The officer identification question presents distinct complexity regarding the ongoing/not ongoing distinction, the dual IBR report structure, and applicable privacy exemptions, and is therefore addressed separately.

Field 3 — Type of Weapon or Threat Allegedly Presented by the Subject

Field 3 may overlap with the requirement of subdivision B 1 of § 2.2-3706.1 to produce “[a] general description of the criminal activity reported.” However, the specific level of detail requested, the type of weapon or threat allegedly presented by the subject, appears to exceed the “general description” contemplated by the statute. Therefore, the specific type of weapon or threat allegedly presented appears to be information that falls within the criminal investigative file exemption.

Field 4 — Whether Any Action Was Taken Against the Officer(s)

Field 4 concerns potential wrongdoing investigations that are specifically covered by clause (ii) of subdivision B 9 of § 2.2-3706 of the Code of Virginia, which addresses administrative investigations of officer misconduct. Information in this field may also fall under the personnel information exemption found in subdivision 1 of § 2.2-3705.1 of the Code of Virginia.9 Because this field falls outside the mandatory disclosure elements of subsection B of § 2.2-3706.1 and is subject to these other exemptions, release is not mandatory but instead is left to the custodian’s discretion.

Field 5 — Number of Rounds Fired by Each Officer

Field 5 is an investigative detail within the criminal investigative file. It does not correspond to any mandatory disclosure element under subsection B of § 2.2-3706.1, and therefore, release is not mandatory but is instead subject to the custodian’s discretion.

Fields 6 and 8 — Whether a Fatality Resulted and Cause of Death

Both Fields 6 and 8 relate to the requirement of subdivision B 5 of § 2.2-3706.1 to provide “[a] description of any injuries suffered.” Whether a fatality resulted may be disclosable under that mandatory element as a description of injury; however, cause-of-death detail goes beyond a basic injury description and falls within the criminal investigative file exemption. To the extent these fields exceed the statutory minimum, release is not mandatory but is instead subject to the custodian’s discretion.

Field 7 — Gender of the Victim

Field 7 may implicate the personal privacy protection in subdivision E 3 of § 2.2-3706.1 as cited by the FOIA officer. By its plain language, that provision, if applicable, must be read in concert with the discretionary exemption framework in subdivision B 1 of § 2.2-3706; together, those provisions would allow this field to remain exempt.

It appears other FOIA exemptions may also apply. After reviewing the IBR User Manual’s explanation of Justifiable Homicide, which was cited by the FOIA officer, it appears that where a peace officer kills a perpetrator of a serious criminal offense, two IBR reports are created listing the perpetrator as a victim and an offender, respectively.10 Accordingly, we must also consider the victim-identification exemption in subdivision B 10 of § 2.2-3706 and its cross-reference to § 19.2-11.2 of the Code of Virginia (prohibiting the release of victim information in certain instances), as well as subsection G of § 2.2-3706.1 (prohibiting the release of records “depicting a victim or allowing for a victim to be readily identified”), in addition to subdivision E 3 of § 2.2-3706.1 (personal privacy protection). As gender is one of the elements of victim identity, it is exempt or, in certain instances, prohibited from release.

Field 9 — Reason for the Initial Call or Encounter

Field 9 overlaps with the requirement of subdivision B 1 of § 2.2-3706.1 to produce “[a] general description of the criminal activity reported.” To the extent the reason for the initial call constitutes such a general description, it appears subject to mandatory disclosure. However, to the extent the requested detail exceeds a general description, as determined by referencing the clauses later on in § 2.2-3706.1, that additional detail remains within the criminal investigative file exemption and is subject to the custodian’s discretion.

C. Officer Names and Badge Numbers in Closed OIS Incidents

As established in Section A of this opinion, the governing provision for materials within the criminal investigative file exemption is subdivision B 1 of § 2.2-3706 of the Code of Virginia, which authorizes, but does not compel, withholding. The question presented in this Section C is narrower: whether officer names and badge numbers associated with closed OIS incidents must be released notwithstanding the Department’s assertion of the criminal investigative file exemption.

It bears noting at the outset that this office’s understanding is that many law-enforcement agencies do not assign badge numbers on a permanent basis. Instead, the same badge number may be reused by different officers at different times.

1. Ongoing Versus Not Ongoing Criminal Investigation

The distinction you raise regarding “closed” OIS incidents maps onto a statutory distinction between investigations that are “ongoing” and those that are “not ongoing,” as those terms are used in subsections C and D of § 2.2-3706.1 of the Code of Virginia. If an investigation is ongoing, the associated records may be withheld at the custodian’s discretion. If an investigation is no longer ongoing, such records are still exempt from the public, but there are specific enumerated parties who are eligible to receive records upon request, unless a provision within subsection E of § 2.2-3706.1 applies.

While subsection E of § 2.2-3706.1 does not itself supply an exemption, records within its scope remain exempt under subdivision B 1 of § 2.2-3706, which continues to authorize discretionary withholding of criminal investigative files. Accordingly, the ongoing or not ongoing distinction is important, but not dispositive: it affects which parties may request access and what procedural obligations apply, but it does not convert discretionary withholding authority into a mandatory disclosure obligation unless the requester is one of the parties specifically enumerated in subdivisions D 1 through 5 of § 2.2-3706.1.

2. Dual IBR Report Structure and Victim Classification Under Such Structure

The Department explained that it generates at least two IBR reports for each OIS incident: one listing the subject as an offender and one listing the subject as a victim. The version listing the subject as an offender appears to be most directly tied to the criminal investigative file exemption under subdivision B 1 of § 2.2-3706, which authorizes withholding of records “relating to a criminal investigation or prosecution” regardless of whether the matter remains active.

The “victim” classification introduces additional complexity. Information related to an OIS incident can meet the statutory definition of a “criminal investigative file” regardless of how the subject is classified in the IBR system because both prongs of the definition, records relating to a criminal investigation and records relating to a prosecution, can encompass the same underlying event. Moreover, when the subject is listed as a victim, that subject acquires specific access and notification rights under subsections D, F, and G of § 2.2-3706.1, and the Department may additionally invoke the discretionary exemption at subdivision B 10 of § 2.2-3706. After examining the IBR rules, this office cannot conclusively determine whether the “victim” version of the report contains “criminal incident information relating to felony offenses” such that the minimum elements of subsection B of § 2.2-3706.1 must be produced or whether the names and badge numbers of involved officers are embedded in portions of the record that remain properly treated as criminal investigative file material.

3. Investigating Officer or Other Point of Contact

Even where subsection B of § 2.2-3706.1 requires disclosure of “[t]he identity of the investigating officer or other point of contact,” that mandatory element does not extend to the names and badge numbers of all officers involved in the underlying event in every investigative record that references them. In this office’s experience, many law-enforcement agencies have a public information officer (PIO) or similar position who serves as the point of contact for public and media inquiries, and it is often this individual who is identified rather than other officers who may be investigating or involved in a shooting incident.

4. Unwarranted Invasion of Personal Privacy

Lastly, the Department asserted that disclosure of the officers’ names and badge numbers would constitute an unwarranted invasion of personal privacy under subdivision E 3 of § 2.2-3706.1. It is the tentative view of this office that this exemption may not extend to the names and badge numbers at issue. Three considerations support this conclusion: Virginia recognizes only limited personal privacy protections; the Supreme Court of Virginia (the Court) now applies an objective standard when determining whether disclosure would invade personal privacy; and some police officers are required by law to display certain identifying information while performing their official duties. We note at the outset that no Virginia court has addressed this precise question as it relates to FOIA, and the following paragraphs should be read as this office’s best reading of limited and largely persuasive authority rather than a settled rule.

No General Right of Privacy

In Virginia, no general right of privacy exists except for the limited right conferred by statute.11 Although the General Assembly has created a statutory cause of action for certain aggrieved persons in limited circumstances, the Court has not expanded that statutory right or recognized a broader common law remedy for invasions of privacy.12 Accordingly, case law interpreting “unwarranted invasion of personal privacy” under Virginia statutes, including FOIA, is limited.

Supporting Case Law

FOIA does not define “unwarranted invasion of personal privacy,” and Virginia courts have provided limited guidance on the phrase. The most relevant authority is the Court’s analysis in Hawkins v. Town of South Hill. Although Hawkins addressed the personnel records exemption rather than the records provisions at issue here, it remains the Court’s only decision construing “unwarranted invasion of personal privacy” as that phrase appears in FOIA. To determine the meaning of “personnel information,” the Court surveyed statutes from other states, which varied in how they defined and treated such information. Drawing on those authorities, the Court articulated a definition of “personnel information” for purposes of the exemption.

Although the issue in Hawkins arose under the personnel records exemption, its interpretive approach informs the analysis of the provision at issue here. Faced with undefined FOIA terms and no statutory guidance identifying the specific information deemed private, the Court declined to “legislate from the bench.”13 Rather than establish categorical rules about which information is private, the Court left that determination to the trier of fact under an objective “reasonable person standard” — whether disclosure would be “offensive and objectionable to a reasonable [person] of ordinary sensibilities.”14

The Court’s survey of out-of-state authority also provides the closest analogue to the information at issue here. In Humane Society of the United States v. Fanslau, a New York decision quoted in Hawkins, the New York Supreme Court concluded that no unwarranted invasion of privacy occurs when the requested information is of a kind that an individual is already legally required to make public.15 The New York Supreme Court held that disclosure of financial statements that a state employee’s family member was legally required to file did not invade personal privacy because “[i]nformation . . . clearly relevant to the Board’s role of investigating ethical code violations . . . constitute[d] general information that the public has a right to uncover.”16 Although Fanslau is persuasive rather than binding authority, its reasoning suggests by analogy that a person has a diminished privacy interest in information that the law already requires to be publicly displayed or maintained in a public record. Virginia courts, however, have not expressly adopted that reasoning.

Officers Are Legally Required to Display Identifying Information

As of July 1, 2026, Virginia law expressly requires that a “law-enforcement officer, while engaged in the performance of his official duties, shall visibly display (i) a badge or insignia bearing such law-enforcement officer’s name or other individual identifier unique to that particular law-enforcement officer and (ii) the name of the law-enforcement agency that employs such law-enforcement officer.”17 The Department’s own General Order 3.01 (Uniforms and Personal Appearance) likewise repeatedly references where and how a badge or name plate must be displayed.18 Because officers are required by statute and departmental policy to display this exact information visibly to the public while on duty, there is a basis for concluding that a reasonable person would not find its disclosure offensive or objectionable, and that subdivision E 3 of § 2.2-3706.1 accordingly may not authorize withholding names and badge numbers on privacy grounds. We stress, however, that this conclusion rests on analogy to nonbinding, out-of-state authority rather than direct Virginia precedent, and a court presented with the question could reasonably reach a different result.

III. Conclusion

To the extent the records exist, incident-level data of the type described in your request may or may not exist within public records and must be produced only if it already exists in the form of a record under FOIA. However, because the nine requested data fields appear to be derived from records relating to criminal investigations or prosecutions, most fall within the definition of “criminal investigative files” in subsection A of § 2.2-3706.1 of the Code of Virginia, and disclosure is therefore generally discretionary rather than mandatory under subdivision B 1 of § 2.2-3706 of the Code of Virginia.

Certain data fields are subject to mandatory disclosure notwithstanding that framework. Field 1 (date of incident) corresponds directly to the mandatory element in subdivision B 2 of § 2.2-3706.1. Fields 3 and 9 (weapon or threat description and reason for initial call) overlap with subdivision B 1 of § 2.2-3706.1 to the extent they constitute a general description of the reported criminal activity, though requested detail beyond that minimum remains discretionary. Field 6 (whether a fatality resulted) may be disclosable under subdivision B 5 of § 2.2-3706.1 as a description of injury, while cause-of-death detail in Field 8 may exceed that minimum and is therefore discretionary. Fields 4 and 5 (action taken against officers; rounds fired) appear to fall entirely within the criminal investigative file exemption.

With respect to the Department’s assertion that production of the requested Excel spreadsheet would require creation of a new record, this office agrees that if the record does not already exist, the Department does not have to create it. Because the responsive data is maintained across several separate sources rather than in a unified record, subsection D of § 2.2-3704 of the Code of Virginia supports the Department’s position that it is not obligated to compile a new record. Subsection G of § 2.2-3704 does not alter that conclusion here, as that provision applies to the excision of existing data fields from a single electronic database or record rather than the aggregation of data across multiple discrete sources into a new record that did not previously exist.

With respect to officer names and badge numbers (Field 2), the Department identified subsection B of § 2.2-3706 and subdivision B 9 of § 2.2-3706 as the applicable exemptions, and subdivision E 3 of § 2.2-3706.1 as an independent basis for withholding. Because none of the cited exemptions prohibit disclosure, the decision to withhold is an exercise of discretion.

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Matteo Murrelle
Staff Attorney

Alan Gernhardt, Esq.
Executive Director

Appendix

Full List of Code Provisions Cited by PWCPD as Bases for Withholding

As a reminder, following is a compilation of all the provisions cited by the Prince William County Police Department (PWCPD) in response to your request:

  • Va. Code § 2.2-3704 (D) — a public body need not create a new record
  • Va. Code § 2.2-3704 (F) and (G) — fee provisions, access to electronic databases, excision of exempt fields, and provision of records in available formats
  • Va. Code § 52-28.2 — reporting of officer-involved shootings; inclusion in annual Crime in Virginia report
  • Va. Code § 2.2-3706 (B) and § 2.2-3706 (B)(9) — withholding law-enforcement and administrative investigative records
  • Va. Code § 8.01-50 — possible wrongful death litigation
  • Va. Code § 2.2-3706.1 (F) — notice required before release when reports identify victims
  • Va. Code § 2.2-3706.1 (E)(3) — potential unwarranted invasion of personal privacy
  • Va. Code § 2.2-3706.1 (D) — mandatory recipients of records

1It appears that the Department incorrectly cited subsection F of § 2.2-3704 of the Code of Virginia when responding to you because it quoted language from the second sentence of subsection G of § 2.2-3704 regarding public records maintained by a public body in an electronic format and the way a public body should provide records that are exempt or nonexempt.
2Note that § 52-28.2 of the Code of Virginia is a reporting requirement for OIS and not a FOIA exemption.
3However, limited research revealed little if any of the demographic information you requested was retrievable on the sites that the Department suggested.
4We assume, for the purposes of this opinion, that when the FOIA officer cited subdivision B 9 of § 2.2-3706 of the Code of Virginia, the intent was to also utilize the discretionary language of subdivision B 2 of § 2.2-3706. The FOIA officer later cited subdivisions B 1 and 9 of § 2.2-3706, and it was not entirely clear what he meant.
5While the FOIA officer in this case cited § 8.01-50 of the Code of Virginia as the section relating to both actions for wrongful death and the statute of limitations for timely filing of such an action, the timing provision is found in § 8.01-244 of the Code of Virginia.
6Such reporting has implications for the disclosure of records under FOIA, which will be discussed in later sections of this opinion.
7See Freedom of Information Advisory Opinions 04 (2004) and 04 (2014) (compiling data from multiple separate records into a new spreadsheet or list is creation).
8https://www.norc.org/research/projects/incident-level-data-of-police-use-of-force.html.
9See Harmon v. Ewing, 285 Va. 335 (Va. 2013).
10https://vsp.virginia.gov/wp-content/uploads/2026/03/2025.2-Virginia-IBR-User-Manual.pdf.
1116 Michie’s Jurisprudence of Virginia and West Virginia, Right of Privacy § 1 (2026).
12Id.
13Hawkins v. Town of South Hill, 301 Va. 416, 432 (2022).
14Id. (quoting Humane Soc’y of U.S. v. Fanslau, 54 A.D.3d 537, 538, 863 N.Y.S.2d 519 (N.Y. App. Div. 2008)).
15Fanslau, 54 A.D.3d at 538.
16Id.
17Va. Code Ann. § 19.2-83.6:2(D).
18Prince William County Police Department Gen. Order 3.01 (Uniforms and Personal Appearance) § B.