 |
VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
|
AO-01-10
February
1, 2010
Sarah Hill
Arlington, 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 of December 5, 2009 and conversations with
the Arlington County Attorney's Office in January, 2010.
Dear Ms. Hill:
You
have asked whether copies of certain photographs of your mother's
real property taken by county employees must be provided to
you under the Virginia Freedom of Information Act (FOIA).
As background, you indicated that your mother was cited for
building code violations at her home and an adjacent vacant
lot which she also owns. You related that she appealed to
the local Board of Building Code Appeals (the Board). You
stated that during the public hearing before the Board held
in July, 2008, several photographs taken by county maintenance
officials were presented as evidence of the alleged violations.
You indicated that you also presented to the Board photographs
that you had taken, and that the county maintenance code officials
made copies of your photographs and other materials you presented.
You stated that after the hearing you requested copies of
the photographs taken by the county. The county denied your
request, stating that these records are exempt from disclosure
under § 2.2-3706 Disclosure of criminal records; limitations
and therefore will not be released.
The
general policy of FOIA set forth in § 2.2-3700 provides
that Unless a public body or its officers or employees
specifically elect to exercise an exemption provided by this
chapter or any other statute ... all public records shall
be available for inspection and copying upon request. All
public records ... shall be presumed open, unless an exemption
is properly invoked. Furthermore, [a]ny exemption
from public access to records ... shall be narrowly construed
and no record shall be withheld ... unless specifically made
exempt pursuant to this chapter or other specific provision
of law. FOIA defines a public record to include
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. There can be no doubt
that photographs taken by County employees as evidence of
USBC violations are public records under this definition.
Therefore, following the stated policy of FOIA, a request
for such records may only be denied pursuant to a proper exemption.
In denying
your request, the Board invoked § 2.2-3706, which contains
several exemptions applicable to various types of records
pertinent to law enforcement. While it would go beyond the
statutory charge of this office to interpret laws outside
of FOIA,1 it is clear on its face that § 36-106
of the Uniform Statewide Building Code (USBC) provides for
violations to be punished both civilly and with criminal fines
and jail time. Subsections A and B of § 36-106 explicitly
state that certain violations of the USBC shall be deemed
a misdemeanor. Subsection C of the same section provides
for the establishment of a schedule of civil penalties for
USBC violations. Similarly to subsections A and B, subsection
D of the same section states that anyone who violates certain
USBC provisions concerning lead hazards shall be guilty
of a misdemeanor. Because violations of USBC provisions
are punishable as criminal misdemeanors, records exemptions
in § 2.2-3706 concerning criminal matters may apply to
records concerning USBC violations. For example, subdivision
F 1 of § 2.2-3706 exempts certain records relating
to a criminal investigation or prosecution, and therefore
could be invoked to withhold such records relating to an investigation
or prosecution of a USBC violation. In denying your request,
the County did not specify which subsection or subdivision
of § 2.2-3706 applied to the photographs in question.
Given the context of this opinion, it is presumed that subdivision
F 1 of § 2.2-3706 is the applicable exemption. Note that
subdivision B 1 of § 2.2-3704 requires that when a request
for records is denied in its entirety, the public body must
cite the specific Code section that authorizes the withholding
of the records. FOIA does not require the public body
to cite a subsection or subdivision of a Code section. Therefore
the County's response citing § 2.2-3706 without citing
a specific subsection or subdivision is in compliance with
the minimum requirements of FOIA. However, citing a specific
subsection or subdivision within a Code section is a common
and commendable practice which helps to clarify exactly which
exemption is being invoked.
In this
instance, you stated that photographs of your mother's property
taken by County employees were presented at a public hearing
before the Board as evidence of USBC violations. The USBC
provides for the establishment of a local board of building
code appeals (LBBCA), but does not address how evidence is
to be handled during a hearing before an LBBCA.2
The pertinent regulations state that all hearings before
the LBBCA shall be open meetings....The chairman shall have
the power and duty to direct the hearing, rule upon the acceptance
of evidence and oversee the record of all proceedings.3
It does not appear that there is any more specific rule of
evidence applicable to such hearings. Based on the facts as
you have described them, the photographs were presented as
evidence during the public hearing held by the Board - i.e.,
the photographs were made public during the public hearing,
before you made your request for copies. It would not make
sense for such photographs to be withheld in response to a
subsequent FOIA request. In the context of the facts you presented,
it is presumable that photographs being used as evidence of
a USBC violation might be withheld in order to protect the
progress of a criminal investigation or prosecution.4 That
is the obvious purpose of the exemption in subdivision F 1
of § 2.2-3706, to allow criminal investigations and prosecutions
to proceed unimpeded, without forcing the public body to reveal
records prematurely that might jeopardize the investigation
or proceedings. However, once the public body does reveal
such records voluntarily and publicly by presenting them as
evidence at a public hearing, that exemption cannot then be
invoked to withhold records already made public. If the County
had additional photographs that were not entered into the
public sphere, those photographs might properly be withheld
under the exemption cited as records relating to a criminal
investigation or prosecution. However, once the photographs
have been voluntarily shared with the public and the alleged
violator during the course of a public hearing, none of the
reasons for exempting them remain. Therefore, under the facts
you have presented, the proper response would have been to
provide you with copies of any photographs that had been used
as evidence during the public hearing. Other photographs that
the County may possess that were not made public during the
public hearing may still be withheld pursuant to § 2.2-3706.
Finally, please note that this office contacted
the office of the Arlington County Attorney in regard to your
inquiry. The office of the County Attorney indicated agreement
that records presented in evidence at a public hearing are
subject to disclosure under FOIA. Furthermore, it is my understanding
that another hearing was held before the Board on December
15, 2010, and that you have been provided with copies of the
photographs taken by the County that were used as evidence
in this matter. Therefore, it appears that although the response
to your initial request last year was in error, this matter
has since been resolved appropriately.
Thank you for contacting this office. I
hope that I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1§
30-179 sets forth the powers and duties of the FOIA Council.
2§ 36-105.
3Subsection G of 13 Va. Admin. Code § 5-63-190.
4This
is especially true of subdivision F 1 of § 2.2-3706,
which specifically refers to records relating to a criminal
investigation or prosecution.
|