FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
S. Webb III, Esq.
Office of the Commonwealth's Attorney
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 January 19, 2012.
have asked whether E911 records related to pending criminal
cases must be released pursuant to records requests made under
the Virginia Freedom of Information Act (FOIA). You indicated
that the E911 Operations Center in the Sheriff's Office regularly
receives such requests for records that relate to pending
criminal cases. You expressed your opinion that such requests
appear to attempt to circumvent the limitations on discovery
allowed in criminal cases, and generate extra work for emergency
response personnel that takes them away from their primary
general policy of FOIA expressed in § 2.2-3700 is that
[u]nless 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. The definition of public records set
forth in § 2.2-3701 includes 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. While a sheriff's office is not a public
body for meetings purposes, constitutional officers are
expressly included in the definition of public body
in § 2.2-3701 for records purposes: For the purposes
of the provisions of this chapter applicable to access to
public records, constitutional officers shall be considered
public bodies and, except as otherwise expressly provided
by law, shall have the same obligations to disclose public
records as other custodians of public records. Reading
these provisions in the context of your inquiry, E911 records
prepared, possessed, or owned by the Operations Center in
the Sheriff's Office in the transaction of public business
are public records subject to disclosure under FOIA,
except to the extent any exemptions apply that allow the record
to be withheld.
your contention that requests for 911 tapes are an attempt
to circumvent criminal discovery, I note that the procedure
for making and responding to a records request under FOIA
is entirely separate from the Rules of Court governing discovery.
In considering a civil subpoena duces tecum, this office has
previously opined that FOIA governs access to records
when requested by a citizen of the Commonwealth or a representative
of the media as part of their right of access granted under
FOIA. However, in the context of litigation, the Rules govern
the procedures for production of records. A subpoena is a
court order commanding that certain documents be produced.
In the context of a subpoena, a public body would not follow
the procedures set forth in FOIA. Even if the same records
could also be accessed by a citizen or representative of the
media pursuant to a FOIA request, the Rules must be followed
once a subpoena has been issued.1 While not
directly on point, the Attorney General has opined that FOIA
exemptions do not apply in the context of a subpoena duces
tecum issued in a criminal or traffic case,2 and
the Supreme Court of Virginia has opined that the statutory
mandamus remedy set forth in FOIA is separate from the common
law writ of mandamus.3 Following these prior opinions
and reasoning by analogy, it is clear that a citizen retains
the right to make records requests under FOIA even when other
mechanisms to obtain records may be available, and that any
given request must be handled under the appropriate procedure.
next to the treatment of 911 records under FOIA, the Supreme
Court of Virginia addressed access to 911 records held by
a sheriff's office in the case of Tull v. Brown.4
That case concerned a 911 call about a child who had stopped
breathing and subsequently died at a local hospital. The incident
was treated as a criminal investigation until an autopsy
rule out any criminal activity as the cause of death.5
Stating that the "transaction of public business"
includes public safety, the Court concluded that the
911 record at issue was an official record subject to FOIA.6
However, the Court further concluded the 911 tape was exempt
from disclosure under then Code § 15.1-135.1 as a noncriminal
incident record. That Code section defined noncriminal
incidents records to include records of suicides
and accidental deaths, and explicitly stated that the
records required to be maintained by this section shall be
exempt from the provisions of [FOIA]. The Court in Tull
concluded that the 911 call at issue here involved
the initially unexplained death of a child. Thus, we conclude
that the 911 Tape falls squarely within the exemption set
forth in Code § 15.1-135.1(B)(5).7 The
Tull case can be distinguished from the inquiry you
present on both the facts and the law. Factually, the matter
at issue in Tull was a death where criminal activity
was ruled out, whereas you present the issue of a 911 record
concerning a pending criminal matter. Because your inquiry
concerns criminal matters rather than a noncriminal incident,
the holding of Tull is not dispositive of your inquiry.
Regarding the law, former Code § 15.1-135 was recodified
without substantive changes as § 15.2-1722 in 1997.8
Section 15.2-1722 was subsequently amended in 1999 with the
removal of the previous records exemption from § 15.2-1722,
and the corresponding addition of a new exemption within FOIA,
codified as then subdivision G 1 of § 2.1-342.2:
Records kept by law-enforcement agencies as required by
§ 15.2-1722 shall be subject to the provisions of this
1. Those portions of noncriminal incident or other investigative
reports or materials 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.
version of that exemption is subsection G of § 2.2-3706:
kept by law-enforcement agencies as required by § 15.2-1722
shall be subject to the provisions of this chapter except
that those portions of noncriminal incident or other investigative
reports or materials that contain identifying information
of a personal, medical or financial nature may be withheld
where the release of such information would jeopardize the
safety or privacy of any person.
the 1999 legislative changes removed the broad exemption for
noncriminal incident records that was the basis for the conclusion
that the 911 records in Tull were exempt from disclosure
in their entirety. Since the 1999 changes, the law has provided
only that the custodian may redact from noncriminal incident
records identifying information of a personal, medical
or financial nature ... where the release of such information
would jeopardize the safety or privacy of any person,
rather than withholding the entire record. Reading the holding
in Tull in light of these subsequent changes to the
laws concerning noncriminal incident records, it is clear
that a 911 record concerning a noncriminal incident may be
redacted as provided under subsection G of § 2.2-3706.
However, that conclusion is not dispositive of your inquiry
about 911 record concerning pending criminal matters.
did not reveal any Virginia Supreme Court opinions addressing
the treatment of 911 records under FOIA other than Tull,
discussed above. Similarly, research did not reveal any published
opinions on the matter from the circuit courts of Virginia
or the Office of the Attorney General. This office is aware
of a 2006 decision from the Circuit Court for the City of
Bristol where the court ordered the release of a 911 tape
related to a criminal investigation or prosecution. However,
the only published opinion from that case concerns the award
of attorney's fees, rather than addressing the underlying
legal issues.10 It is my understanding that the
court in that case relied on Tull for its decision;
as discussed above, however, the Tull decision is
not dispositive of your inquiry concerning pending criminal
being no specific exemption solely addressing 911 records
in a criminal context, there can be no blanket rule that addresses
all such records. Whether a 911 record must be released depends
upon the context and contents of each such record, and must
be determined on a case-by-case basis. It is my general understanding
that most, if not all, 911 records either include or have
associated with them additional information such as the time
the call was placed, the time of the response, the dispatcher
who took the call, and other administrative information. That
type of information is not usually subject to any exemption
and would have to be released. On the other hand, there are
various exemptions within § 2.2-3706 that permit records
in the criminal context to be withheld, including several
items that might be found in a 911 record, such as the identities
of victims, witnesses, undercover officers, and confidential
informants, as well as witness statements as part of a criminal
investigative file.11 Therefore, in conclusion,
911 records are public records subject to FOIA that must be
disclosed upon request except to the extent that an exemption,
or exemptions, allows for portions to be withheld.
you for contacting this office. I hope that I have been of
of Information Advisory Opinion 05 (2003).
21991 Op. Atty. Gen. Va. 81.
3Cartwright v. Commonwealth Transportation
Commissioner of Virginia, 270 Va. 58, 613 S.E.2d 449
4255 Va. 177, 494 S.E.2d 855 (1998).
5Id., 255 Va. at 180, 394 S.E.2d at 856.
6Id., 255 Va. at 183, 494 S.E.2d at 858.
Further note that FOIA at that time applied to official
records, which term was later changed to public records.
7Id., 255 Va. 1t 184, 494 S.E.2d at 859.
81997 Acts of Assembly, c. 587.
91999 Acts of Assembly, cc. 703 and 726.
10Media General v. City of Bristol, 72
Va. Cir. 207 (City of Bristol 2006).
investigative files are defined in subsection A of §
2.2-3706 to mean any documents and information including
complaints, court orders, memoranda, notes, diagrams, maps,
photographs, correspondence, reports, witness statements,
and evidence relating to a criminal investigation or prosecution,
other than criminal incident information.