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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-08-15
October 5, 2015
Sterling
E. Rives III, Esq.
County Attorney
County of Hanover
Hanover, 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 dated July 14, 2015.
Dear
Mr. Rives:
You
have asked what options a law enforcement agency has
to respond for a request for audio and video records
from body-worn cameras and dashboard cameras. You
stated your belief that such records, if they are
part of criminal investigative files, internal affairs
investigation records, or personnel records, would
be exempt pursuant to subdivision A 2 a of §
2.2-3706, subdivision A 2 i of § 2.2-3706, or
subdivision 1 of § 2.2-3705.1, respectively.
Therefore you limit your question specifically to
records that are not subject to these exemptions,
but that do contain "identifying information
of a personal, medical, or financial nature"
which would "jeopardize the safety or privacy"
of private individuals if released, i.e., noncriminal
incidents records subject to subsection B of §
2.2-3706.1 As a hypothetical example, you
describe a situation where a law enforcement officer
(LEO) makes a traffic stop and activates a body-worn
or dashboard camera, and the recording may include
the faces and voices of individuals in the vehicle,
the make and model of the vehicle, the driver's license
of the driver, the vehicle's license plate, and the
dialogue with the officer. You note that the same
information could be captured at a DUI or driver's
license checkpoint. You also assert that such "information
is of a personal nature, the mandatory disclosure
of which would jeopardize the privacy, and perhaps
the safety, of the driver and passengers." You
later presented alternative hypotheticals such as
responding to a domestic dispute or participating
in a crisis intervention team response. Camera recordings
of such responses could include images of a private
home and its contents, the home address, the faces
and voices of those involved in the incident and any
others present at the scene, as well as any dialogue
with the officer(s) and other responders present.
You ask whether such records are exempt in their entirety
as noncriminal incidents records pursuant to subsection
B of § 2.2-3706, or instead whether such records
must be redacted. As a follow-up question, you ask
if such records must be redacted, how such redactions
should be made. Further background information will
be set forth as needed below; due to the length of
this opinion, section headers are used below to improve
clarity.
FOIA
Policy
In analyzing this hypothetical, we must keep in mind
the policy statement in subsection B of § 2.2-3700
that provides guidance in interpreting all exemptions
from mandatory disclosure under the Virginia Freedom
of Information Act (FOIA):
The
affairs of government are not intended to be conducted
in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken
at any level of government. 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 and meetings shall be presumed
open, unless an exemption is properly invoked.
The
provisions of this chapter shall be liberally construed
to promote an increased awareness by all persons
of governmental activities and afford every opportunity
to citizens to witness the operations of government.
Any exemption from public access to records or meetings
shall be narrowly construed and no record shall
be withheld or meeting closed to the public unless
specifically made exempt pursuant to this chapter
or other specific provision of law.
These
policy provisions are implemented through the procedural
requirements for making and responding to a request
in § 2.2-3704.
Before considering the application of the noncriminal
records exemption and your questions concerning redaction,
first note that the type of record in question - whether
it is a video or audio recording, still photograph,
written report, or otherwise - does not change the
legal analysis or the application of exemptions under
FOIA. The definition of public record in
§ 2.2-3701 specifically includes
all
writings and recordings that consist of letters,
words or numbers, or their equivalent, set down
by handwriting, typewriting, printing, photostatting,
photography, magnetic impulse, optical or magneto-optical
form, mechanical or electronic recording or other
form of data compilation, however stored, and 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.
This
language makes clear that the means of making a record,
or the media on which it is recorded, do not affect
how the record will be treated under FOIA, as all
types of records may be public records regardless
of medium. The law distinguishes between different
records based on their contents and whether those
contents are exempt from mandatory disclosure, not
based on how the record was recorded or stored. Therefore
the fact that the records in question are recordings
made by LEO's using body-worn or dashboard cameras,
by itself, does not affect how the records are treated
under FOIA. The hypothetical records at issue are
clearly public records as they are created by public
employees in the transaction of their public business,
i.e. LEO's carrying out their duties. Given the hypothetical
facts that these recordings may contain a mix of criminal,
personnel, and noncriminal incident records, it is
these contents that determine how these recordings
are to be treated under FOIA.
Noncriminal
Records Exemption
For purposes of this opinion, let us first consider
a hypothetical where the only exemption at issue is
the noncriminal records exemption, subsection B of
§ 2.2-3706, which reads in full as follows:
Noncriminal
records. Records (i) required to be maintained by
law-enforcement agencies pursuant to § 15.2-1722
or (ii) maintained by other public bodies engaged
in criminal law-enforcement activities shall be
subject to the provisions of this chapter except
that those portions of noncriminal incident or other
noncriminal 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. Access to personnel records
of persons employed by a law-enforcement agency
shall be governed by the provisions of subdivision
A 2 i of this section and subdivision 1 of §
2.2-3705.1, as applicable.
As
a practical matter, it is my understanding that depending
on the policy of the law enforcement agency in question
and the technical operation of the camera, what is
actually captured on any given recording may vary.
For example, it is possible that the camera is turned
on when an officer first responds to an incident and
turned off when the incident is resolved. In such
a situation the record may solely contain footage
of a single incident. Alternatively, if a camera is
left on for a longer period of time it may capture
multiple incidents. Both situations will be considered
below.
In analyzing the application of the noncriminal records
exemption, note that the exemption uses different
language for records maintained by local police and
sheriffs as opposed to records maintained by other
law enforcement agencies. As quoted above, this exemption
in its first clause applies to records required
to be maintained by law-enforcement agencies pursuant
to § 15.2-1722. Section 15.2-1722 speaks
to the duties of local sheriffs and police chiefs
to maintain certain records and pass them on to their
successors in office. In its second clause, the noncriminal
records exemption refers to records maintained
by other public bodies engaged in criminal law-enforcement
activities, which would apply to other law enforcement
agencies such as the Virginia State Police, the Department
of Game and Inland Fisheries, the Department of Alcoholic
Beverage Control, and others. The first clause refers
to § 15.2-1722, whereas the second clause does
not, which forces a different interpretation depending
on what agency actually has the records in question.
For purposes of this opinion, we presume your hypotheticals
do concern recordings made by local police and sheriffs,
rather than other LEO's, and therefore fall under
the first clause of subsection B of § 2.2-3706,
which refers to § 15.2-1722. Subsection B of
§ 15.2-1722 defines noncriminal incidents
records to mean compilations of noncriminal
occurrences of general interest to law-enforcement
agencies, such as missing persons, lost and found
property, suicides and accidental deaths. In
Tull v. Brown, the Supreme Court of Virginia
ruled that a 911 tape that was comprised of "a
recording on multiple channels of all radio traffic
handled through the [Sheriff's] dispatch office in
addition to conversations occurring on [the Sheriff's]
four telephone lines and conversation between individuals
physically in the dispatcher's office" was a
compilation that was subject to the noncriminal
incidents exemption as it was then codified.2
More recently, in the case of Fitzgerald v. Loudoun
County Sheriff's Office,3 the Court
considered whether a suicide note could be withheld
as a noncriminal incident record. Turning to a dictionary
definition in the absence of a statutory definition,
the Court found that the term compilation
means "the act or action of gathering together
written material esp. from various sources" or
"something that is the product of the putting
together of two or more items."4 The
court reasoned that because a suicide note concerned
a single incident and not multiple suicides, it could
not be a compilation and therefore was not
subject to the noncriminal records exemption. Extrapolating
from the Court's holdings in Tull and Fitzgerald,
it appears that at least for the first clause of the
noncriminal records exemption that refers to §
15.2-1722, a record must be a compilation
in order for the exemption to apply. Again following
the Court's holdings in Tull and Fitzgerald,
it appears that in order to be a compilation,
a record must be derived from multiple sources or
must concern multiple incidents (or both).5
Applying these holdings to your hypothetical facts
leads to alternative answers. If the records in question
are recordings from a single camera concerning a single
incident, then they are not compilations
and the noncriminal records exemption does not apply.
In that case, the record must be released in its entirety
unless some other exemption applies that would allow
the record, or portions thereof, to be withheld. On
the other hand, if the record in question has been
compiled from multiple sources or contains information
concerning multiple incidents, then following the
Court's holdings in Fitzgerald and Tull,
it would be a compilation subject to the
noncriminal incidents exemption.
Note that it does not appear that the Supreme Court
has had occasion to opine on the second clause of
the noncriminal records exemption. That clause does
not refer to § 15.2-1722. As a matter of legislative
history, the second clause was added because it was
observed that following the narrow construction rule
for FOIA exemptions, the reference to § 15.2-1722
in former subsection G of § 2.2-3706 limited
the application of the noncriminal records exemption
to local police and sheriffs only.6 Other
law enforcement agencies could not use the exemption
as it was written at that time. Senate Bill 1264 (2013)
was a recommendation of the FOIA Council made after
three years of Criminal Investigative Records Subcommittee
meetings.7 SB 1264 rewrote § 2.2-3706
and added the second clause to the noncriminal records
exemption as a substantive change in order to "expand
to the state law-enforcement agencies the ability
to withhold portions of noncriminal incident information."8
The legislative history makes clear that the intent
was to allow all law enforcement agencies to use the
noncriminal records exemption equally. However, it
appears that the result as interpreted under Fitzgerald
and Tull may be the opposite. Given
that only the first clause of the exemption refers
to the limiting language of § 15.2-1722, and
the second clause does not, it would follow that the
definition of noncriminal incidents records from
§ 15.2-1722 would not necessarily apply to other
law enforcement agencies using the exemption pursuant
to the second clause. Presumably if the definition
was at issue for state law-enforcement agencies, a
court would follow the rule of statutory construction
to use the ordinary meaning of the term, rather than
the statutory definition referenced for local police
and sheriffs.9 Therefore the definition
of noncriminal incidents records in §
15.2-1722, and the holdings of Fitzgerald
and Tull that are dependent on that definition,
would appear to be inapplicable when the noncriminal
records exemption is used by law enforcement agencies
other than local police and sheriffs. It follows then
that the determination of whether a record is a compilation
as discussed above would only affect the treatment
of records held by local police and sheriffs. Thus
the end result appears to be that local police and
sheriffs can only use the noncriminal records exemption
if the record at issue is a compilation as
that term is interpreted under Fitzgerald
and Tull, while other law enforcement agencies
may use the noncriminal records exemption regardless
of whether a record is a compilation. If
this is not the intent of the General Assembly, then
the legislature may wish to consider language clarifying
what is their intent regarding the treatment of noncriminal
records.
Redaction
of noncriminal records
On the issue of redaction, FOIA provides two relevant
responses and procedural requirements covering situations
where records may be withheld in whole or in part.
Subdivision B 1 of § 2.2-3704 addresses situations
where records are entirely withheld:
The
requested records are being entirely withheld because
their release is prohibited by law or the custodian
has exercised his discretion to withhold the records
in accordance with this chapter. Such response shall
identify with reasonable particularity the volume
and subject matter of withheld records, and cite,
as to each category of withheld records, the specific
Code section that authorizes the withholding of
the records.
Subdivision
B 2 of § 2.2-3704 addresses situations where
records are withheld in part, but the remainder is
provided:
The
requested records are being provided in part and
are being withheld in part because the release of
part of the records is prohibited by law or the
custodian has exercised his discretion to withhold
a portion of the records in accordance with this
chapter. Such response shall identify with reasonable
particularity the subject matter of withheld portions,
and cite, as to each category of withheld records,
the specific Code section that authorizes the withholding
of the records. When a portion of a requested record
is withheld, the public body may delete or excise
only that portion of the record to which an exemption
applies and shall release the remainder of the record.
Following
these statutory provisions, the advice of this office
in the past has been that if a record contains both
exempt and non-exempt information, the public body
may redact only the exempt information and must produce
the remainder of the document.10 Applying
this analysis to the facts you present, the initial
answer would vary depending on the contents of the
video in question. If the entire contents of the video
are subject to an exemption, then the entire video
may be withheld as set out in subdivision B 1 of §
2.2-3704. On the other hand, if the video contains
portions that are subject to an exemption and portions
that are not, then only the exempt portions may be
withheld and the remainder would have to be released.
However, the Supreme Court of Virginia issued a ruling
on September 17 of this year in the case of Department
of Corrections v. Surovell11 that
holds differently. In that opinion, the Court considered
a public safety exemption, subdivision 6 of §
2.2-3705.2, as applied to the Department of Corrections
"execution manual." Based on the facts presented
in the case, the execution manual appears to contain
both exempt and non-exempt portions. In the Court's
own words: "The question before us is whether
an agency is required to redact an exempt document
that may contain non-exempt material. We agree with
the Commonwealth that an agency is not required to
redact under these circumstances."12
In further analysis comparing this public safety exemption
to other public safety exemptions, the Court drew
a distinction between exemptions that use the phrases
those portions or portions thereof
and exemptions which do not, holding that redaction
is only required for exemptions that use the phrases
those portions or portions thereof.
Specifically, the Court wrote that "[h]ad the
General Assembly intended to require redaction of
documents that fall under the security exemption of
subsection (6) of the statute, it would have included
the phrase 'those portions' or 'portions thereof.'"13
In this instance, unlike the security exemption at
issue in Surovell, the noncriminal incidents
exemption at issue here does use the phrase those
portions and therefore redaction may be authorized
when the exemption applies.
Note that the majority opinion in Surovell
did not address subdivision B 2 of § 2.2-3704.
The dissent in this case did consider subdivision
B 2 of § 2.2-3704 and the dissenting opinion
appears to be in accord with prior opinions of the
FOIA Council:
The
final sentence of Code § 2.2-3704(B)(2) clearly
contemplates situations in which a single record
contains both exempt and non-exempt information.
Read together, these provisions permit a custodian
to withhold an entire record only when an exemption
categorically excludes a record or exempts all of
the information contained within a record. When
an exemption applies to only some of the information
within a record, Code § 2.2-3704(B)(2) permits
the custodian to “delete or excise only that portion”
and requires the custodian to “release the
remainder of the record.” In sum, Code § 2.2-3704(B)
makes disclosure the default response. Consistent
with VFOIA’s statement of policy, a public body
may not expand a claimed exemption to withhold information
that does not otherwise qualify for exclusion.14
While
it appears that the dissent in this case agrees with
the earlier interpretation this office has given to
subdivisions B1 and B2 of § 2.2-3704 as described
above, the majority opinion in Surovell is
controlling and we must follow it.
Returning to the hypothetical facts you presented,
you asserted that some recordings would be exempt
as criminal investigative files, internal affairs
investigation records, or personnel records. You are
correct in that such records would be exempt pursuant
to subdivision A 2 a of § 2.2-3706, subdivision
A 2 i of § 2.2-3706, and subdivision 1 of §
2.2-3705.1, respectively. The criminal investigative
file exemption allows public bodies to withhold
[c]riminal investigative files, defined as 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 subject to release
in accordance with subdivision 1 a. The internal
affairs records exemption allows public bodies to
withhold [r]ecords of (i) background investigations
of applicants for law-enforcement agency employment,
(ii) administrative investigations relating to allegations
of wrongdoing by employees of a law-enforcement agency,
and (iii) other administrative investigations conducted
by law-enforcement agencies that are made confidential
by law. The personnel records exemption allows
public bodies to withhold [p]ersonnel records
containing information concerning identifiable individuals,
except that access shall not be denied to the person
who is the subject thereof. None of these exemptions
uses the phrases those portions or portions
thereof. In the past we generally would have
advised examining such records to determine whether
their contents were entirely exempt or whether an
exemption applied only to part of the recording. In
the former situation, when the contents of the record
are entirely exempt, the entire recording would be
exempt. In the latter case, when only some of the
contents are exempt, we would have advised redacting
only the exempt portion(s) and releasing the remaining
pursuant to subdivision B 2 of § 2.2-3704. However,
following the decision in Surovell, any record
that contains material that is exempt under an exemption
that does not use the phrase those portions
or portions thereof appears to be exempt
in its entirety. Therefore following Surovell,
our advice must change regarding records that contain
parts that are exempt as criminal investigative files,
internal affairs records, or personnel records. If
any of these exemptions applies to part of the recording,
then the recording is exempt in its entirety, even
if it also contains parts that in the past would have
been subject to redaction as noncriminal records,
or even if the recording contains parts that would
not otherwise be subject to any exemption.
However, as described previously, there may be situations
where the only records on a given recording are in
fact noncriminal in nature, situations where no other
exemption would apply. As quoted above, the noncriminal
records exemption specifically exempts those
portions of noncriminal incident
or other noncriminal 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. [Emphasis added.]
Following Surovell, therefore, if the only
exemption that is applicable is the noncriminal records
exemption, then the record would be subject to redaction
because the exemption does use the phrase those
portions. But in applying the noncriminal records
exemption to local police and sheriffs' records one
must remember that under Fitzgerald, the
record in question must be a compilation
as a condition precedent to the application of the
exemption.
Given that there is a hypothetical situation where
such camera recordings would be subject to redaction,
you also asked about how such redactions should be
made. You provided your understanding that there is
software available that will blur the entire screen
of the entire video and modify any voices sufficiently
to avoid the disclosure of personal information.15
You indicated it is also possible to go through each
video segment and pixilating, blurring or distorting
only individual faces, voices, and other identifying
information, but that doing so is a very time intensive
and expensive undertaking. This is really a question
of technology rather than a question of law, and it
is not answered by FOIA directly. However, consider
that the Supreme Court of Virginia has held that a
public body may charge for exclusion review "to
assure that those records are responsive, are not
exempt from disclosure, and may be disclosed without
violating other provisions of law."16
Subdivision F of § 2.2-3704 specifically allows
charging up to the actual cost of supplying public
records, which may include certain redaction costs.17
Therefore the charges to segregate exempt and non-exempt
portions of records - i.e., redaction - may be passed
on to the requester as part of the charges for searching
for and supplying those records. Next
consider the policy statement of FOIA in subsection
B of § 2.2-3700 that [a]ll public bodies
and their officers and employees shall make reasonable
efforts to reach an agreement with a requester concerning
the production of the records requested. Following
this policy and the Court's holding on charges for
exclusion review, if this hypothetical situation should
arise where a record may be redacted pursuant to the
noncriminal records exemption, I would suggest contacting
the requester and arraying the various options available,
the costs and time involved in each, and seeking an
agreement from the requester regarding the redaction.
Turning to the application of the noncriminal records
exemption as discussed above in light of the Surovell
decision, we must once again note the distinction
between local and state law enforcement agencies.
For local police and sheriffs, it appears that there
are three distinct possible outcomes. First, assuming
the recording in question is a compilation,
and only subject to the noncriminal records exemption,
then following the holding in Surovell, the
public body may redact those portions of noncriminal
incident or other noncriminal investigative reports
or materials that contain identifying information
of a personal, medical, or financial nature ... where
the release of such information would jeopardize the
safety or privacy of any person. Second, if the
recording is a noncriminal record but it is not a
compilation as that term is used in Fitzgerald
and no other exemption applies, then it must be released
in its entirety. Third, if some other exemption applies,
and that other exemption does not use the phrase those
portions or portions thereof, such as
the criminal investigative files, internal affairs,
or personnel records exemption, then the recording
may be withheld in its entirety.
By contrast, state law enforcement agencies would
only have two results under the same hypothetical
facts. First, if the record contains portions subject
to the noncriminal records exemption, those portions
could be redacted regardless of whether the record
is a compilation. Second, if another exemption
applies that does not use the phrase those portions
or portions thereof, the record may be withheld
in its entirety.
In conclusion, it appears that following the Supreme
Court of Virginia's precedents cited above, whether
a record may be withheld in its entirety or only in
part now depends not just on the contents of the record,
but on the phrasing of the applicable exemption and,
in the case of noncriminal law enforcement records,
which agency holds the record. Additionally, while
the intent of the noncriminal records exemption appears
on its face to be to protect privacy and safety in
regard to personal, medical, and financial information,
in the case of local police and sheriffs this intent
may only be achieved if the records at issue are compilations
derived from multiple sources or concerning multiple
incidents. Noncriminal records in the hands of local
law enforcement that are derived from a single source
or concern only a single incident and to which no
other exemption applies appear to be subject to mandatory
disclosure because they are not compilations
as interpreted in Fitzgerald. By contrast,
it appears that the exemption does exempt such portions
of noncriminal records in the hands of state law enforcement
agencies. In other words, records whose contents may
be identical will be treated differently depending
on which agency has the records. If these results
are not what was intended by the legislature, then
it is up to the General Assembly to change the law.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Note
that other exemptions might also apply depending on
what is actually recorded, but for purposes of this
opinion, we are considering only the exemptions considered
in the background you provided.
2Tull v. Brown, 255 Va. 177, 184,
494 S.E.2d 855, 858-859 (1998)(note that the Tull
opinion was decided under former Code § 15.1-135).
3Fitzgerald v. Loudoun County Sheriff's
Office (Record No. 141238, decided April 16, 2015)(available
at http://www.courts.state.va.us/opinions/opnscvwp/1141238.pdf
(last accessed October 5, 2015)).
4Id. at 11 (quoting Webster's Third
New International Dictionary 464 (2002)).
5Note that prior to Fitzgerald this
office had not opined on the term compilation from the
definition in § 15.2-1722 as a controlling limitation
on the application of the noncriminal records exemption.
Previously this office had observed that § 15.2-1722
is a records management and retention statute, not an
access statute. See, e.g. Freedom of Information
Advisory Opinion 27 (2003)("A review of the history
of § 15.2-1722 indicates that this provision is
not directly related to access to records.
Instead, the provision relates to records management
and retention by local law-enforcement officials. It
requires sheriffs and chiefs of police to ensure the
maintenance of certain records, and requires such individuals
to relinquish these records to their successors in office.
The provision ensures that local law-enforcement agencies
keep adequate records -- it does not speak directly
to whether these records must be disseminated or may
be withheld." [Emphasis in original.]).
6See Freedom of Information Advisory
Opinion 10 (2009).
7The
Criminal Investigative Records Subcommittee of the FOIA
Council met from 2010 through 2012. Its work is documented
on the FOIA Council Archives webpage at http://foiacouncil.dls.virginia.gov/Archives.htm.
8Senate Bill 1264, Summary as Introduced
(available at http://lis.virginia.gov/cgi-bin/legp604.exe?131+sum+SB1264,
last accessed October 5, 2015).
9See, e.g., American Tradition Institute
v. Rector and Visitors of the University of Virginia,
287 Va. 330, 331, 756 S.E.2d 435, 441 (2014)( "When
the legislature leaves a term undefined, courts must
give the term its ordinary meaning, taking into account
the context in which it is used.").
10Freedom
of Information Advisory Opinion 13 (2002).
11Department
of Corrections v. Surovell (Record No. 141780,
Sept. 17, 2015)(available at http://www.courts.state.va.us/opinions/opnscvwp/1141780.pdf
(last accessed Sept. 18, 2015)).
12Surovell at 11.
13Surovell at 12.
14Surovell at 17 (internal citation
referencing Freedom of Information Advisory Opinion
13 (2002) omitted).
15This
type of redaction would appear to be too much as any
parts of the record which are not exempt would also
be blurred and modified. That result would be contrary
to the directive of subdivision B 2 of § 2.2-3704
that [w]hen a portion of a requested record is withheld,
the public body may delete or excise only that portion
of the record to which an exemption applies and shall
release the remainder of the record.
16American Tradition Institute v. Rector
and Visitors of the University of Virginia, 287
Va. 330, 345, 756 S.E.2d 435, 443 (2014).
17Freedom
of Information Advisory Opinion 02 (2007).
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