Vol. 1, No. 1 | July 2006

Legal Summaries: Records and FOIA

by Lisa Kelley
Deputy City Attorney
Charlottesville, VA

COURT CASES

Bristol, Virginia (May 2006): recently, a Circuit Court in Bristol, Virginia, entered a writ of mandamus ordering the disclosure of a 911 recording to a local newspaper pursuant to Virginia’s Freedom of Information Act (FOIA). In an article written by the editor of the Bristol Herald Courier on May 7, 2006, posted on the website of the Virginia Coalition for Open Government, the newspaper asserts its belief that all 911 recordings should be available to the public, stating “it isn’t just about having access to an emotionally compelling tape, but also having access to a tape so you can determine if a 911 call was properly handled—quickly, without delay and professionally.” From this newspaper article, it appears that the 911 recording relates to a murder investigation or prosecution and that a child was somehow involved. It further appears that the newspaper’s FOIA request was denied by the City Manager and Chief of Police, based on information related to them by the Commonwealth’s Attorney regarding the requirements of FOIA. It is not clear from the article which FOIA exemptions Bristol officials may have asserted in the court proceedings.  The newspaper article asserts that Bristol is basing one of its arguments on a desire to protect the identity or other information regarding a child. An appeal of the Circuit Court’s decision is pending in the Virginia Supreme Court.

Comment: 911 recordings are almost certainly “public records” as that term is defined within §2.2-3701 of FOIA. See Tull v. Brown, 225 Va. 177, 494 S.E.2d 855 (1998)(rejecting a Sheriff’s argument that such recordings are not prepared in the transaction of public business, a component of the definition of public records). See also Va. Code §2.2-3705.2(1)(indicating that the name, address, telephone number and other information identifying a telephone subscriber, generated in connection with a call to a 911 system, may be released in response to a FOIA request that seeks public records about the use of the 911 system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call).  HOWEVER, it is clear that, pursuant to FOIA, §2.2-3706(F)(1), complaints, witness statements and evidence relating to a criminal investigation or prosecution may be withheld from disclosure pursuant to a FOIA request. If a 911 recording contains any such information, then at a minimum, the exemption should be available for those portions of the recording.  Depending on the circumstances, other exemptions may also be asserted to protect 911 recordings, or portions thereof, such as:  §2.2-3706(C)(the identity of any victim, witness or undercover officer need not be disclosed); §2.2-3706(G)(1)(exempts those portions of noncriminal incident reports or materials containing identifying information of a personal, medical or financial nature, if the release of such information would jeopardize the safety or privacy of any person). For a definition of “personal information,” see Va. Code §2.2-3801(2), the Government Data Collection and Dissemination Practices Act.

For a discussion of how the Virginia Freedom of Information Advisory Council would analyze requests for disclosure of records containing information regarding a juvenile who is a victim of a crime, or who has been involved in a motor vehicle accident, see VFOIAC opinions dated July 19, 2005 and June 7, 2005, respectively.

Lexington, Virginia (December 2005): following the trial of a traffic case involving a charge of driving under the influence, the citizen (Buckner) who had been charged with the offense filed a complaint against a Lexington police officer, alleging that he had given perjured testimony at the trial. The Lexington Police Department investigated the complaint.  Buckner submitted a Freedom of Information Act (FOIA) request to Police Chief Beard, seeing a copy of the written investigative report. Chief Beard denied the request and Buckner initiated a petition for mandamus. At a hearing in Rockbridge County Circuit Court, counsel for the Chief asserted that the investigative report constituted a “personnel record” exempt from disclosure under FOIA pursuant to Va. Code §2.2-3705.1(1). Judge Michael S. Irvine ruled, based on the factual information and arguments presented to him, that the investigative record did not constitute a personnel record. Since the Judge was not asked to consider the applicability of any other exemptions, he ordered the investigative report to be disclosed.  In this case, the recordkeeping practices of the City of Lexington and its police department created confusion for the Court. The citizen’s complaint and the final investigative report were kept in separate files in the Chief’s office, in a “personnel filing cabinet”; however, other information that might be expected to be in a personnel file (such as documentation of evaluations and promotions) were not kept in either of those files, but rather in the Chief’s desk drawer. Finally, there was testimony that the “official personnel files” for the City’s police officers were actually kept in the City Manager’s office. The Court stated that “[t]his convoluted practice of keeping personnel records makes it difficult to rely upon the practice itself in determining whether or not the investigation is a personnel record,” and ruled that (i) the investigative report did not contain pertinent personal information of the same kind as that referenced in §15.2-1722(B)(definition of the types of “personnel records” required to be maintained by a chief of police), and (ii) the investigative report was not kept in the official personnel file maintained by the City Manager for the employee in question.

Comment: in this case, the Police Chief might have prevailed had he asserted the FOIA exemption that is available to local law enforcement agencies under Va. Code §2.2-3706(G)(3)(which allows an exemption for records of background investigations of applicants for law-enforcement agency employment, or other confidential administrative investigations conducted pursuant to law.).  In making a case for his assertion that the investigative report constituted a “personnel record” exempt from disclosure under Va. Code §2.2-3705.1(1), the Chief may have found useful the reasoning applied by Virginia’s FOIA Advisory Council, i.e., that the FOIA exemption for personnel records is a privacy-based exception, designed to protect the subject of the record from the dissemination of personal information, and that in order to protect individual privacy the exemption applies to more then just records contained in a personnel file in a supervisor’s or human resource manager’s office—the exemption should apply to any record held by a public body that relates to an identifiable employee concerning any matter related to the scope of his employment. See February 14, 2004 Opinion of the FOIA Advisory Council.

LEGISLATION EFFECTIVE JULY 1, 2006

Public Records Act: Title 42.1 of the Va. Code has been amended (see House Bill 209) to require the state Library Board to update the Public Records Act to include provisions relating to the management and archiving of electronic records. Also Section 42.1-86.1 has been amended to require that certain records, once authorized by the state Library for destruction, must be destroyed within a 6-month period following the authorization. [But note: §42.1-87 states that: “Nothing in [the Public Records Act] shall be construed to…compel the removal of records deemed necessary by [agency heads] in the performance of their statutory duty.”  For records required to be kept by police chiefs in the performance of their duties, see Va. Code §15.2-1722.]

Government Data Collection and Dissemination Practices Act:  effective July 1, 2006, pursuant to Va. Code 2.2-3802(7), record systems maintained by the police department of the Chesapeake Bay Bridge and Tunnel Commission, which contain information dealing with investigations and intelligence gathering relating to criminal activity, will be exempt from the provisions of the Act.  (Such records of the state police, of police departments of counties, cities and towns, and of campus police departments are already so exempt).