December 18, 2000
Mr. C. Dean Foster, County Attorney
Gate City, VA 24251
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 December 8, 2000.
Dear Mr. Foster:
You have asked whether the name of a complainant to the Natural
Tunnel Soil and Water Conservation District ("the District")
must be released to a requester under the Virginia Freedom
of Information Act (FOIA).
Section 10.1-563 of the Code of Virginia prohibits any person
from engaging in a land-disturbing activity until he has filed
an erosion and sediment control plan with the District and
the plan has been approved. Subsection A of §10.1-569 makes
it a Class 1 misdemeanor to violate this provision. The Erosion
and Sedimentation Control Administrator ("the Administrator")
of the District would be the proper party to bring an enforcement
action, which would be prosecuted by either the attorney for
the Commonwealth or the county attorney. You indicate that
a landowner within the District commenced bulldozing on his
property without filing the requisite plan, and as a result
the Administrator received complaints and issued a stop work
order. The landowner is now requesting that the District release
the names of the complainants.
FOIA requires that all public records be available for public
inspection and copying unless otherwise specifically provided
by law. Section 2.1-342.2 addresses disclosure of criminal
records, and sets forth certain exemptions. Specifically,
subsection F.1. reads:
F. 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
1. Complaints, memoranda, correspondence and evidence
relating to a criminal investigation or prosecution...
The Supreme Court of Virginia reviewed a parallel provision
of the law prior to the major revision of FOIA in 1999.1
While addressing other issues relating to the procedural requirements
of FOIA, the Court found that this exemption applied to complaints
received by a county zoning administrator relating to zoning
violations. The Court held that the zoning administrator properly
exercised his discretion in applying the criminal investigation
exemption to the requested documents. Although FOIA has been
revised, this case would appear to be controlling.
In 1999, FOIA was substantially redrafted as a result of
a yearlong study of its provisions. In the redraft of FOIA,
the provisions relating to criminal records were consolidated
into a single section,2 but the portion addressing
the release of complaints relating to criminal investigations
remained substantially the same. The prior version of the
law read, in part, that [m]emoranda, correspondence, evidence
and complaints related to criminal investigations were
excluded from the mandatory disclosure requirements of FOIA,
but could be released by the custodian in his discretion.3
Neither the prior nor the current version of the law specifically
define "criminal investigation" to limit its application to
traditional law-enforcement officials. Other FOIA provisions
relating to other types of criminal records, such as criminal
incident information4 or records relating to neighborhood
watch programs,5 specifically apply to those records
in the hands of law-enforcement officials or agencies. However,
both the prior and current versions of the criminal investigation
exemption refer to custodians of complaints related
to criminal investigations. This choice of language, in comparison
with specific references to law enforcement in other provisions,
indicates a legislative intent to include within the scope
of the exemption records in the hands of any public entity
related to a criminal investigation.
Because FOIA leaves the term "criminal investigation" undefined,
rules of statutory construction dictate that it should be
afforded its common meaning within the context of its usage.6
A criminal investigation would be an investigation of an act
considered by law to be a crime. Thus, the determination of
whether a public official has engaged in a criminal investigation
hinges on the punishment of the violation at issue. If the
violation could result in criminal punishment, then the ensuing
investigation would be criminal in nature, and the related
records maintained by a public official would be criminal
investigation records subject to the exemption. In the instant
case, the penalty for not filing a plan with the District
is a Class 1 misdemeanor -- a crime -- making the complaints
criminal investigation records.
In conclusion, it would appear that the District Administrator,
when conducting an investigation to determine if a criminal
violation of § 10.1-563 has been committed, could properly
withhold the records of the complaints leading to the investigation.
Thank you for contacting this office. I hope that I have
been of assistance.
Maria J.K. Everett
Jenkins, 258 Va. 598 (1999).
2Report of the Joint Subcommittee Studying Virginia's
Freedom of Information Act, House Document No. 106 (2000).
3Va. Code Ann. § 2.1-342(B)(1) (Michie 1998) (current
version at § 2.1-342.2(F)(1) (2000 Supp.).
4Va. Code Ann. § 2.1-342.2 (B) (Michie 1998).
5Va. Code Ann. § 2.1-342.2(F)(5).
6Commonwealth Department of Taxation v. Orange-Madison
Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991
Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987
Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes
and Statutory Construction, 6th ed., §46:01.