VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-16-01

March 26, 2001

Mr. Thomas J. McKeigue
Midlothian, VA

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 February 4, 2001.

Dear Mr. McKeigue:

You have asked whether a list of the names and addresses of holders of a Virginia concealed handgun permit ("permit") is a public record available from the State Police pursuant to the Virginia Freedom of Information Act (FOIA). In order to obtain a permit, an individual must apply at a Virginia circuit court. Upon favorable review of the application and required background checks, the court will issue an order for the permit. Subsection K of § 18.2-308 of the Code of Virginia requires that a copy of the order be forwarded to the Virginia State Police for entry into its communications system known as the Virginia Criminal Information Network (VCIN).

By way of background to your question, you indicate that you possess a concealed handgun permit. In the past several months, you have received solicitations and political announcements addressed to "Virginia Gun Owner" and "Concealed Handgun Permit Holder." In an effort to determine how these solicitors obtained your name and address, you contacted the court that issued your permit. You state that the clerk's office told you that it no longer makes public the names of permit holders, but suggested that you contact the State Police because they also maintain that information. Upon inquiry to the State Police, you discovered that they consider the names and addresses of permit holders to be a matter of public record available under FOIA.

In addition to asking generally whether the police are correct in classifying this information as a public record, you have also asked two specific questions concerning interpretations of FOIA that you believe would allow the list to be withheld. Your first question focuses on the nature of the information contained within VCIN. You assert that the permit information, along with other information in VCIN, is intended to be used by law-enforcement personnel for investigative purposes. As such, you ask whether access to this information could be restricted only to law-enforcement personnel. Alternatively, you ask if the permit information could be considered a noncriminal incident or other investigative report that contains identifying information of a personal nature, and thus may be exempted pursuant to subdivision G. 1. of § 2.1-342.2 of FOIA.

Pursuant to subsection A of § 2.1-342, all public records are open for inspection except as otherwise specifically provided by law. FOIA policy dictates that all public records shall be presumed to be open. In furthering this policy of openness, § 2.1-340.1 states that the provisions of FOIA must be liberally construed, and the exemptions must be narrowly construed. Upon review of the FOIA exemptions as well as portions of the Code of Virginia addressing permits, no exemptions appear to apply to a list of the names and addresses of permit holders. As such, FOIA requires that these records be open for inspection and copying.

Turning to your specific questions, you first ask whether the permit information may be withheld because it is sent to the State Police for entry into VCIN, and information in VCIN is primarily used by law-enforcement personnel for investigative purposes. You ask if access to VCIN records should be restricted to law-enforcement personnel, its intended users. FOIA does exempt records related to criminal investigations or prosecutions at subdivision F. 1. of § 2.1-342.2. However, construing this exemption narrowly as required by law, such an exemption would not apply to records simply because they might at some point be involved in a criminal investigation. Instead, this exemption would apply to records currently being used by law-enforcement personnel to investigate a crime. A record maintained in VCIN might become exempt from FOIA if it is indeed related to a particular investigation, but the mere fact that it is maintained in VCIN does not make it subject to the exemption. In addition, there are no provisions in either FOIA or the Code of Virginia that limit the distribution of records in VCIN to only law-enforcement personnel. To read such a requirement into the law would violate the mandate of FOIA that all records must be made available to the public except as otherwise specifically provided by law.

Alternatively, you suggest that a list of the names and addresses of permit holders should be exempt as a noncriminal incident report. Generally, subsection G of § 2.1-342.2 requires that all records kept by law-enforcement agencies pursuant to § 15.2-1722 be open under FOIA. However, subdivision G. 1. of § 2.1-342.2 allows law-enforcement agencies to withhold 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. While FOIA does not define "noncriminal incident report," subsection B of § 15.2-1722 provides that "noncriminal incidents records" means compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths. This definition indicates that it covers certain records relating to an event investigated by law-enforcement personnel that does not necessarily constitute a crime, as seen from the examples of a missing person or an accidental death. Following the policy of FOIA to construe all exemptions narrowly, a list of the holders of permits issued by a court does not fit this definition. While information concerning a permit holder could, in some instances, become a part of a law-enforcement investigation, and as a result may become subject to this exemption, by itself a list of permit holders unrelated to a specific event or occurrence would not be included in the scope of this exemption.

In conclusion, no specific statutory exemptions apply to a list of the names and addresses of permit holders that would allow it to be withheld under FOIA. In light of the stated policy of FOIA to narrowly construe all exemptions and to liberally construe the provisions of the law, the list of permit holders is a public record open for inspection and copying under FOIA, and was properly released by the State Police.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director