FOI Advisory Council Opinion AO-27-03

December 10, 2003

Ms. Alicia R. Zatcoff
Legal Advisor, Richmond Police Department
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 e-mail of October 28, 2003.

Dear Ms. Zatcoff:

You have asked a question concerning access to criminal investigation records under the Virginia Freedom of Information Act (FOIA). Specifically, you have asked whether a conflict exists between subdivision F 1 of § 2.2-3706 of the Code of Virginia, which exempts case files relating to a criminal investigation from disclosure, and subsection G of § 2.2-3706, which requires records kept by law-enforcement agencies pursuant to § 15.2-1722 to be available for public inspection and copying.

You indicate that the Richmond Police Department ("the Department") received a FOIA request for a police file regarding a 1997 homicide. The requester specifically asked to see initial witness statements, notes from the police officers, the police reports, the autopsy report, and any other information in the file. The Department responded in writing and withheld the requested records pursuant to subdivision F 1 of § 2.2-3706. You indicate that the Department received a second request for the same records. The requester argued that subsection G of § 2.2-3706 mandated release of information kept by law-enforcement agencies as required by § 15.2-1722, and that § 15.2-1722 required local police departments to keep investigative and arrest records. Therefore, the requester asserted that he was entitled to the requested records.

Subsection A of § 2.2-3704 requires that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Section 2.2-3706 generally governs access to law-enforcement records. Subdivision F 1 of § 2.2-3706 allows a custodian to withhold from public disclosure [c]omplaints memoranda, correspondence, case files or reports, witness statements, and evidence relating to a criminal investigation or prosecution. However, subsection G of § 2.2-3706 states that [r]ecords kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to [FOIA]. Section 15.2-1722 requires the sheriffs or chiefs of police of localities to keep adequate personnel, arrest, investigative, reportable incidents, and noncriminal incidents records necessary for the efficient operation of a law-enforcement agency. Therefore, your question stems from the apparent conflict between the language of subdivision F 1 of § 2.2-3706, which would exempt a police file relating to a homicide investigation from disclosure, and subsection G of § 2.2-3706, which declares that records held by local police, including investigative records, are subject to public inspection and copying.

As the result of recommendations made by a joint subcommittee studying FOIA, the General Assembly made substantial changes to FOIA in 1999, including the creation of a section devoted to access to law-enforcement records.1 The creation of the law-enforcement section was due in part to the conflict of various Code sections relating to law-enforcement records. This change to FOIA also reflected the policy that it is in the public interest to protect certain law-enforcement records from public disclosure so as not to impede law enforcement's ability to effectively conduct criminal investigations and to protect the safety of officers, undercover operatives, victims, and the public generally. As a result, certain exemptions were clarified and an attempt was made to put law-enforcement exemptions into one section in the Code. These changes included the new language found in subsections F and G of § 2.2-3706, which prior to 1999 did not exist in FOIA.

A review of the history of § 15.2-1722 indicates that this provision is not directly related to access to records. Instead, the provision relates to records managements and retention by local law-enforcement officials. It requires sheriffs and chiefs of police to ensure the maintenance of certain records, and requires such individuals to relinquish these records to their successors in office. The provision ensures that local law-enforcement agencies keep adequate records -- it does not speak directly to whether these records must be disseminated or may be withheld.

Until the 1999 rewrite of FOIA, § 15.2-1722 also included a provision exempting all records mentioned in that section from FOIA. With the creation of the FOIA section relating specifically to law-enforcement records, this provision was repealed. In its place, subsections F and G of § 2.2-3706 were enacted in FOIA itself to address access to these records. Subdivision F 1 of § 2.2-3706 allows investigative records to be withheld generally, regardless of whether such records are held by the state police, local law-enforcement agencies, or any other entity that investigates or prosecutes criminal activity. Subsection G requires that records held by sheriffs and chiefs of police be open, but recognizes that certain records, while not criminal in nature, may also contain sensitive information that should be protected from public disclosure. Subdivisions G 1, G 2 and G 3 of § 2.2-3706 address these other records and set forth exemptions for portions of noncriminal incident reports that contain personal, medical or financial information, records relating to undercover operations, and background investigations of law-enforcement personnel applicants.

In interpreting two statutes that might appear to conflict, rules of statutory construction dictate that statutes related to the same subject should be considered in pari materia to achieve a harmonious result.2 In pari materia literally means "on the same subject; relating to the same manner."3 As such, statutes relating to the same matter must be construed together so that an inconsistency in one statute may be resolved by looking at another statute on the same subject. Applying this rule to interpret subsections F and G of § 2.2-3706, it becomes clear that the General Assembly intended for records relating to criminal investigations and prosecutions to be exempt from public disclosure, whether such records are held by state or local law-enforcement officials. To reach a different conclusion would result in an inconsistent application of the law where records of a murder investigation by the state police could be withheld, but records of an identical investigation conducted by a local police department would be subject to disclosure. The policy of protecting the public safety by safeguarding the integrity of a criminal investigation is the same regardless of whether state or local law-enforcement personnel conduct the investigation. In addition, a reading of subsection G of § 2.2-3706 that would require the release of criminal investigation records would essentially negate the exemption allowed for by subdivision F 1 of § 2.2-3706.

In conclusion, the Department's records of a homicide investigation may be properly withheld pursuant to subdivision F 1 of § 2.2-3706. This exemption applies generally to all criminal investigative records. The provisions found in subsection G at § 2.2-3706 recognize that in addition to maintaining criminal investigative records, local law-enforcement agencies are also required to create and maintain other types of records, including noncriminal incident records and personnel records. These records may also contain some sensitive information that is not criminal in nature, but that may nonetheless be withheld from public disclosure.

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

Sincerely,

Maria J.K. Everett
Executive Director

1HJR No. 187 (1998). See House Document No. 106 (2000) for a summary of the Joint Subcommittee's work. The law enforcement provision, currently found at § 2.2-3706, was initially enacted as § 2.1-342.2 (1999).
2See Prillaman v. Commonwealth, 199 Va. 401 (1957). See also 2001 Op. Atty. Gen. Va. 122, Virginia Freedom of Information Advisory Opinion 06 (2003).
3See Black's Law Dictionary (7th Edition).