FOI Advisory Council Opinion AO-02-11

AO-02-11

July 21, 2011

Katherine Greenier, Director
Patricia M. Arnold Women's Rights Project
ACLU of Virginia
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 received June 7, 2011.

Dear Ms. Greenier:

You have asked whether certain records you requested from the Department of Corrections (DOC) are exempt from disclosure under the Virginia Freedom of Information Act (FOIA). You stated that you requested from DOC a "list containing the names, state identification numbers, and facility location of all female inmates incarcerated at [DOC] institutions." The response from DOC denied this request, citing subdivision F 6 of • 2.2-3706, which allows the records custodian to withhold all records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment.1 As further background, you stated that the DOC itself treats this information as a matter of public record by making it available on the DOC website2 through a public search page. That page may be searched either by first and last name of an inmate, or by the inmate's state identification number. The search results returned include the inmate's full name, state identification number, facility location, race, gender, and projected release date. Among other information, the web page states that "[t]he information found here contains public record information on offenders sentenced to the Department of Corrections." You contend that the records you sought do not fall within the exemption cited by DOC because subdivision C of • 2.2-3706 requires that [i]nformation in the custody of law-enforcement agencies 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 be released, and considering DOC's own statement that the information on the search page is "public record information."

In considering this matter, first note that as an agency of the Commonwealth, there is no question that DOC is a public body subject to FOIA, as that term is defined in • 2.2-3701. Turning next to the definition of public record in the same section, it includes all writings and recordings...regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Records that are not prepared for or used in the transaction of public business are not public records. As records prepared, owned, or possessed by DOC in the transaction of DOC's public business, any records DOC has showing the names, identification numbers, and facilities in which inmates are incarcerated would be considered public records. The fact that DOC on its website calls these records public records is merely stating a truism under the law. The question then turns upon whether those public records are exempt from disclosure. The general policy of FOIA expressed in • 2.2-3700 is that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked. Giving effect to this policy, subsection A of • 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Therefore, the records you requested would be public records subject to disclosure upon request unless some exemption applies which allows them to be withheld as otherwise specifically provided by law. It appears from the facts you have presented that DOC did respond in a timely fashion, and did cite a statutory exemption, thus complying with the procedural requirements of FOIA in responding to your request.3

As previously stated, the response from DOC asserted that the requested records are exempt pursuant to subdivision F 6 of • 2.2-3706, which allows the records custodian to withhold all records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment. However, you contend that the records must be released pursuant to subdivision C of • 2.2-3706, which requires that [i]nformation in the custody of law-enforcement agencies 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 be released. The Office of the Attorney General (OAG) has published an opinion addressing a similar issue dealing with a sheriff's jail log.4 The OAG first observed that prior opinions, also concerning sheriffs' records of persons held in jail, concluded that a list of those persons incarcerated is subject to disclosure under FOIA.5 The OAG then considered both the exemption cited by DOC and the provision you cited as requiring release, which at that time were both contained in the same subdivision. Specifically, when that opinion was issued, then subdivision b 1 of • 2.1-342 exempted

all records of persons imprisoned in penal institutions in this Commonwealth provided such records relate to the said imprisonment. Information in the custody of law-enforcement officials relative to the identify 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 [FOIA].6

While this language is divided into subsection C and subdivision F 6 of • 2.2-3706 in the current law, it is clear that the substance of the law at issue is the same now as it was then. The OAG concluded that matters recorded in the Jail Log must be disclosed to the extent that such matters related to the identity of an individual arrested or charged and the status of the arrest or charge. Noting that the jail log at issue contained additional matters related to the administrative record of inmate activities, the OAG went on to opine that other matters recorded in the Jail Log concerning inmate activities or observations concerning inmates may be deleted from the Jail Log...prior to disclosure.7

Consider the OAG opinion in concert with your assertion that DOC must release the records you requested pursuant to the requirement to release information about persons arrested and charged, and the status of the charge and arrest. It could be argued by analogy that if the part of a sheriff's jail log containing a list of persons incarcerated must be disclosed, then the DOC records you sought must similarly be subject to mandatory disclosure under FOIA because a list of inmates' identities and facility locations is analogous to the jail log. However, this argument fails because DOC is not a law-enforcement agency. As quoted previously, subsection C of • 2.2-3706 mandates that [i]nformation in the custody of law-enforcement agencies 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 be released. The phrase law-enforcement agency is not defined in FOIA. Looking outside of FOIA for guidance, the phrase is used extensively throughout various Code sections.8 In looking through the various usages of the phrase, it becomes clear that law-enforcement generally refers to police, sheriffs, and others who investigate crimes and make arrests. DOC and corrections personnel are treated separately and often distinguished from law-enforcement agencies and officers. Note, for example, that the definition of law-enforcement officer in • 9.1-101 does not include correctional officers who work for DOC.9 Instead, • 53.1-1 defines correctional officer to mean a duly sworn employee of the Department of Corrections whose normal duties relate to maintaining immediate control, supervision and custody of prisoners confined in any state correctional facility. Note also that the same • 53.1-1 sets forth different definitions for the terms deputy sheriff and jail officer. In similar fashion, facilities where prisoners and arrestees might be held are given separate definitions.10 Given this context, it is clear that while subsection C of • 2.2-3706 requires the release of information about arrests and charges from police, sheriffs, and other law-enforcement agencies, it does not require DOC to release information about inmates in its custody who are already convicted.11

Next, turning to DOC's assertion that the records are exempt, DOC is correct that subdivision F 6 of • 2.2-3706 allows it to withhold, in its discretion, [a]ll records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment. A plain reading of this exemption would indicate that DOC may, in its discretion, withhold the records you seek in their entirety.12 However, we must also consider that DOC has chosen to make certain information about inmates publicly available on its website through the search function previously described. It appears that DOC has made it possible for anyone to look up the information you seek and more, so long as the person uses the DOC website search engine to look up inmates on a one-by-one basis using either the inmate's name or identification number. In theory, it would be possible for someone to check court records for the names of persons convicted, look up inmates one-by-one on the DOC website using the information gleaned from the court records, and then to compile the list you seek. Generally speaking, as a practical matter it does not make sense to assert simultaneously that information which has already been voluntarily placed into the public domain remains exempt from disclosure. In this instance, it appears DOC only seeks to assert the exemption when the information sought is larger in scope (i.e. the list of all female inmates you sought, as opposed to looking up each inmate individually).

The question is then whether DOC may provide this information to the public through its website search feature on a one-by-one basis about individual inmates, while at the same time denying a request for the larger, underlying database showing the same information for a larger group of inmates as you requested. As previously stated, it appears DOC could withhold the records you seek in their entirety pursuant to subdivision F 6 of • 2.2-3706, as records of persons imprisoned in penal institutions in the Commonwealth ... relate[d] to the imprisonment. This exemption is prefaced with the following language, which appears repeatedly throughout FOIA: 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. Read together with the language of the exemption, it is clear that while DOC can withhold these records, it may also choose to release them, in its discretion. Neither FOIA itself nor the courts have given specific direction on how a public body is to exercise that discretion.13 Considering the search engine on the DOC website, it appears that DOC has chosen to provide limited access to information about individual inmates to those persons who already know either the inmate's name or identification number. This grant of limited access to otherwise exempt records would appear to be an exercise of the discretion granted by the statute. However, DOC has not chosen to voluntarily and affirmatively post on its website the entire list of inmates' names, identification numbers, gender, and facility location (i.e., the records you seek). Had DOC done so, then it would make no sense to deny your request since the records you seek would already be in the public domain. Since DOC has not posted such a list, however, it appears to be within the scope of the cited exemption, subdivision F 6 of • 2.2-3706, to deny your request as DOC has done.

Additionally, while it is outside of FOIA, note that • 9.1-101 defines the phrase correctional status information to mean records and data concerning each condition of a convicted person's custodial status, including probation, confinement, work release, study release, escape, or termination of custody through expiration of sentence, parole, pardon, or court decision.14 As a general rule, • 19.2-389 prohibits the public dissemination of criminal history information, and • 9.1-136 provides criminal misdemeanor penalties for certain instances of improper release of such information.15 However, subsection C of • 9.1-126 states as follows:

Nothing contained in this article shall be construed as prohibiting a criminal justice agency from disclosing to the public factual information concerning the status of an investigation, the apprehension, arrest, release, or prosecution of an individual, the adjudication of charges, or the correctional status of an individual, which is related to the offense for which the individual is currently within the criminal justice system.

Reading these provisions together with the discretionary exemption set forth in subdivision F 6 of • 2.2-3706 in FOIA, it appears that records related to the imprisonment of persons in penal institutions in the Commonwealth are exempted from mandatory disclosure, certain criminal history information is prohibited from release, but DOC may release correctional status information on individuals currently incarcerated, in its discretion.

Having examined this issue, there appears to be a statutory scheme that information concerning arrests and charges are public through law-enforcement agencies, information about trials and convictions are public through court records, but information about persons held in state correctional facilities after conviction are exempt from mandatory disclosure as described above. In other words, under Virginia law there are no secret arrests, there are no secret court proceedings, but once someone has been convicted and assigned to the custody of DOC, public access is curtailed except as previously noted.16

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

Sincerely,

Maria J.K. Everett

Executive Director

1. I note that your original request letter contained a second request which was also denied. As you did not inquire about that second request and denial, it will not be addressed in this opinion.
2. Available at http://www.vadoc.virginia.gov/offenders/locator/ (last visited July 7, 2011).
3. See generally • 2.2-3704 (setting forth the procedure for making and responding to a request for public records)..
4. 1987-1988 Op. Atty. Gen. Va. 37.
5. Id. citing 1983-1984 Op. Atty. Gen. Va. 446; 1974-1975 Op. Atty. Gen. Va. 583.
6. Id., n.3
7. Note that this opinion relied in part on former Code • 15.1-135.1, which also excluded from disclosure certain records maintained by sheriffs and chiefs of police. The corresponding law in the current Code would be subsection G of • 2.2-3706, which refers out to • 15.2-1722, concerning noncriminal incident reports maintained by sheriffs and chiefs of police. Note that the current exemption allows the redaction of certain personal, medical, and financial information, but does not entirely exempt the records to which it applies. In any case, as these provisions are limited to sheriffs' offices and police departments; they would not apply to DOC.
8. A search of the Code on the Legislative Information System for "law-enforcement agency" returned 376 references in 158 documents (http://leg1.state.va.us/000/lst/LS635003.HTM, last accessed July 15, 2011).
9. In full, • 9.1-101 provides as follows: "Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, and shall include any (i) special agent of the Department of Alcoholic Beverage Control; (ii) police agent appointed under the provisions of • 56-353; (iii) officer of the Virginia Marine Police; (iv) conservation police officer who is a full-time sworn member of the enforcement division of the Department of Game and Inland Fisheries; (v) investigator who is a full-time sworn member of the security division of the State Lottery Department; (vi) conservation officer of the Department of Conservation and Recreation commissioned pursuant to • 10.1-115; (vii) full-time sworn member of the enforcement division of the Department of Motor Vehicles appointed pursuant to • 46.2-217; or (viii) animal protection police officers employed under • 15.2-632. Part-time employees are those compensated officers who are not full-time employees as defined by the employing police department or sheriff's office.
10. See • 53.1-1 (separate definitions for community correctional facility, local correctional facility, lock-up, and state correctional facility; only the definition of state correctional facility would apply to DOC). Note also • 53.1-16 (repealed effective July 1, 2012), which explicitly grants the powers of law-enforcement officers to DOC's internal investigators; unstated is the premise that other DOC personnel are not law-enforcement officers.
11. Note that one definition of law-enforcement agency, in • 32.1-48.06, does include any...adult or youth correctional officer. However, by its own terms, the definitions are limited to use in that article of the Code, which concerns public health threats and quarantines. It does not affect the general conclusion that DOC is not a law-enforcement agency for purposes of the disclosures required under subsection C of • 2.2-3706.
12. Note that while there are certain affirmative requirements to release information about prisoners outside of FOIA, such as the information posted to the Virginia Statewide VINE (Victim Information and Notification Everyday) System (see Code •• 19.2-11.01, 53.1-133.02, and 53.1-160), the Sex Offender and Crimes Against Minors Registry (see Chapter 9 (• 9.1-900 et seq.) of Title 9.1), and other required notices under Title 53.1, it appears that the exemption cited by DOC generally allows information about state prisoners to be withheld if requested under FOIA.
13. See Freedom of Information Advisory Opinion 09 (2008).
14. Reference to this definition reinforces the concept that the information you seek is in fact correctional status information, not arrest and charging information that would have to be released pursuant to subsection C of • 2.2-3706.
15. In full, • 9.1-136 states that Any person who willfully and intentionally requests, obtains, or seeks to obtain criminal history record information under false pretenses, or who willfully and intentionally disseminates or seeks to disseminate criminal history record information to any agency or person in violation of this article or Chapter 23 (• 19.2-387 et seq.) of Title 19.2, shall be guilty of a Class 2 misdemeanor.
16. See n.12, supra.