FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Kevin Cox
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-mails
of January 12, 2001, and January 17, 2001.
Dear Mr. Cox:
You have asked two
questions about the application of the Virginia Freedom of
Information Act (FOIA). The first references access to noncriminal
police reports, and the second references access to a phone
directory of city employees.
1. You first
ask whether you may access copies of noncriminal incident
reports from your local police under FOIA. You indicate
that the reports relate to incidents in which motorists
were charged with failing to yield to the pedestrian right-of-way
in a crosswalk. When you made your request, you provided
the date, location, charging officer, and name of individual
charged for three separate incidents to the police, and
requested to view the entire report of each. The police
refused your request.
G. 1. of § 2.1-342.2 of the Code of Virginia provides
that noncriminal incident and other investigative reports
kept by law-enforcement agencies are subject to FOIA.
However, portions of such records containing identifying
information of a personal, medical or financial nature
provided to a law-enforcement agency where the release
of such information would jeopardize the safety or privacy
of any person may be withheld. Therefore, it appears
that the police may exercise their discretion and excise
personal, medical or financial information as described
2. Your second
question concerns your attempt to access a phone directory
of city employees. You indicate that you requested a copy
of such directory from the city, but were told that such
a record does not exist. However, you have been told by
other city employees that such a record does indeed exist.
You ask if such a record would be accessible under FOIA.
the record you have requested does indeed exist, it would
be subject to FOIA. Subsection A of § 2.1-342 provides
that [e]xcept as otherwise specifically provided by
law, all public records shall be open to inspection and
copying by citizens of the Commonwealth. Section 2.1-342.01
sets forth a number of exemptions to this rule, which
pursuant to § 2.1-340.1 must be construed narrowly. The
type of document that you have requested would not appear
to fall under any of the stated exemptions.
however, that subsection D of § 2.1-342 does not require
a public body to create a new record if the requested
document does not already exist. If, as you have stated,
the public body from whom you requested the phone list
continues to assert that such a document does not exist,
it is under no obligation to create the record in response
to your request. If you believe that such a document does
exist despite the public body's assertions to the contrary,
your only remedy would be to seek a writ of mandamus or
injunction under § 2.1-346.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett