VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

NOTICE: THE FOLLOWING OPINION HAS BEEN RESCINDED.
PLEASE SEE ADVISORY OPINION 07 (JUNE, 2005).

AO-02-05

March 11, 2005

Don Rimer
Virginia Beach, 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 electronic mail of January 20, 2005.

Dear Officer Rimer:

You have asked whether you, as Media Relations Officer for the Virginia Beach Police Department, may release the name of a juvenile¹ who was killed in a shooting incident involving police officers.² You state that you have been advised not to release the name of this juvenile, or that of any other juvenile killed or injured, regardless of the cause of death or injury (car crash, drowning, etc.), based upon prohibitions contained in § 16.1-301 of the Code of Virginia. You further state that, based upon your professional knowledge and contact with the officers of other departments, this restriction is a departure from past police departmental policies not only in Virginia Beach, but throughout the Commonwealth. This office has received many additional inquiries on this issue from other police departments as well as the news media.

Beginning with a general examination of public policy, juvenile records are treated differently than those of adults, both in the Virginia Freedom of Information Act (FOIA) and other statutes. For example, scholastic records containing individually identifying information are protected under subsection 1 of § 2.2-3705.4. A parent or legal guardian of a student may prohibit the release of that student's records until the student reaches the age of 18. A student age 18 or older may waive those protections. Similar treatment is given to juvenile's health records under subsection 1 of § 2.2-3705.5. Family assessment and planning teams are exempt from FOIA pursuant to § 2.2-3703. Other specific provisions relating to records and information concerning minors are found throughout the Code of Virginia, such as limitations on access to scholastic records found in § 22.1-287, or the rules for accessing adoption records found in §§ 63.2-1245 through 63.2-1247. Additional relevant provisions may be found in federal statutes such as the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, or restrictions on the use of records from federal juvenile delinquency proceedings, 18 U.S.C. § 5038. While a comprehensive list of such provisions is beyond the scope of this opinion, these examples demonstrate a public policy trend favoring the protection of juveniles' records from general public disclosure.

Addressing the question presented under FOIA, subsection A of § 2.2-3704 provides that public records shall be open to inspection and copying [e]xcept as otherwise specifically provided by law. In regard to law-enforcement records, in § 2.2-3706, FOIA provides several exceptions from its mandatory disclosure rule. Specifically regarding juveniles, subsection C of § 2.2-3706 states that [i]nformation in the custody of law-enforcement agencies relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest shall be released. This subsection makes clear that information about the identity and status of adult arrestees is to be treated differently than the same information about juvenile arrestees, but does not directly address the question you present, which did not involve arrestees. As previously mentioned, FOIA does contain other exemptions applicable to juvenile records, but no other provision specifically refers to law-enforcement records concerning juveniles. It appears therefore that FOIA itself does not contain any provision, particularly applicable to juveniles as opposed to adults, that would prohibit the release of law-enforcement records concerning a juvenile shot by a police officer or otherwise injured or killed.³

However, subsection A of § 16.1-301, concerning the Juvenile and Domestic Relations District Courts, contains a broad prohibition against the release of law-enforcement records concerning juveniles: The court shall require all law-enforcement agencies to take special precautions to ensure that law-enforcement records concerning a juvenile are protected against disclosure to any unauthorized person. The second sentence of subsection A of § 16.1-301 requires that police departments and sheriffs keep separate records as to violations of law other than violations of motor vehicle laws committed by juveniles.⁴ The third sentence provides an exception for the release of records of certain juveniles over 14 years of age charged with violent felonies, after reiterating that [s]uch records with respect to such juvenile shall not be open to public inspection nor their contents disclosed to the public. Subsection B contains provisions allowing a police chief or sheriff to disclose to a school principal that a juvenile is a suspect in or has been charged with certain crimes. Subsection C allows for the inspection of law-enforcement records concerning juveniles by particular persons and entities in an enumerated list. Subsection D allows police departments and sheriffs to share current information regarding juvenile arrests with other law-enforcement agencies. Subsection E makes clear that § 16.1-301 does not prohibit the exchange of other criminal investigative or intelligence information among law-enforcement agencies. Improper disclosure of these and other confidential records concerning minors⁵ may be punished as a misdemeanor pursuant to § 16.1-309.

In analyzing § 16.1-301, it is well established that a statute should be read and considered as a whole, and the language of a statute should be examined in its entirety to determine the intent of the General Assembly from the words contained in the statute. In doing so, the various parts of the statute should be harmonized so that, if practicable, each is given a sensible and intelligent effect.⁶ The plain language used by the General Assembly must be considered first, because where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.⁷ Stated otherwise, the ultimate goal of statutory interpretation is to ascertain the will of the legislature, the true intent and meaning of the statute, which are to be gathered by giving to all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious and just in their operation.⁸

Beginning this analysis with the plain language used in § 16.1-301, the first sentence of subsection A refers to law-enforcement records concerning a juvenile.⁹ It does not differentiate between the different types of records held by a law-enforcement agency, nor does it differentiate based upon the status of the juvenile as an arrestee, suspect, defendant, prisoner, victim, witness, or otherwise. Furthermore, this phrasing does not differentiate based upon the subject matter of the records or the information contained therein, whether it is criminal or non-criminal, so long as the records are law-enforcement records concerning a juvenile. By contrast, the second sentence does differentiate between violations of law and other records, but it is in reference to separate record-keeping requirements, not as an exception to the prohibition from disclosure. The third sentence reiterates the prohibition on disclosure, and then excepts certain juvenile records from it if the juvenile is over the age of 14 and charged with certain violent felonies. The first sentence prohibits disclosure to any unauthorized person, which implies that disclosure to some persons will be authorized. Subsections B, C, and D of § 16.1-301 identify these authorized persons to whom information and records may be released under certain circumstances. Subsection E refers to other criminal investigative and intelligence information, not juvenile records. Thus, taken as a whole, the plain language of § 16.1-301 establishes a general rule prohibiting the disclosure of law-enforcement records concerning juveniles, addresses certain record-keeping requirements, and states specific exceptions to the general rule against disclosure.

Much of the language in § 16.1-301 refers to violations, felony charges, court proceedings, and the like. The contextual implication is thus that the juvenile records in question are those dealing with juveniles suspected, charged, or convicted of committing or otherwise being involved with some crime. Certain characterizations of § 16.1-301 further this implication. For example, in 1983 the Attorney General opined that § 16.1-301 requires that special precautions be taken by the court to ensure that law-enforcement records concerning children before the court are protected from unauthorized disclosure, and it specifies those to whom such records may be disclosed.¹⁰ This statement seems to imply that only the records concerning children before the court are protected under § 16.1-301. At issue in this opinion was whether a law-enforcement officer could testify at a student disciplinary hearing before a school board. The Attorney General concluded that an officer could testify against a juvenile student at a disciplinary hearing before a school board if the testimony consists of facts which the officer observed personally, independently of juvenile court hearings, proceedings and records.¹¹ The implication that the protections only applied to children before the court was thus dicta, not essential to the Attorney General's conclusion. Section 16.1-301 prohibits the disclosure of law-enforcement records, not facts or information personally observed by law-enforcement officers. Section 16.1-309 penalizes the improper disclosure of information directly or indirectly derived from the records or files of a law-enforcement agency, court or the Department of Juvenile Justice¹² or acquired in the course of official duties, not information acquired by other means such as personal observation outside the course of official duties. Thus while the Attorney General characterized § 16.1-301 as applying to children before the court, his conclusion was not dependent upon or limited to that characterization. The plain language of § 16.1-301, which is controlling in any case, does not limit the records it protects to those of children before the court.

In that 1983 opinion the Attorney General also quoted from an earlier 1977 opinion that considered what information might be released to the news media without violating § 16.1-309: The information that §§ 16.1-299 to -309 seek to control is that which would specifically identify or describe a juvenile, or whatever otherwise concerns a particular juvenile, who has become involved with a law enforcement agency or court, if that information is derived either directly or indirectly from an agency or court file or acquired in the course of official duties.¹³ In the 1977 opinion the Attorney General concluded that information that specifically identifies, describes or, in any way, concerns a certain juvenile or juveniles, which information is directly or indirectly derived from the records or files of law enforcement agencies, courts, or the Department of Corrections or acquired in the course of official duties, may not be released to the news media, unless authorized by the court.¹⁴ This conclusion appears entirely harmonious with the plain language of § 16.1-301.

Next, the analysis turns to the public policy ramifications of § 16.1-301 as it relates to FOIA. In recommending the confidentiality provisions that were added to Title 16.1 in 1977, the Virginia Advisory Legislative Council stated that the Council's recommendations try to strike a balance between the need for investigative tools on the part of law enforcement officials and the right of the child and family to privacy.¹⁵ While research revealed no Virginia court cases directly addressing the question you presented, the Court of Appeals of Virginia opined in 1990 that [t]he current juvenile law expresses a strong interest in the confidentiality of juvenile court records. See Code §§ 16.1-299 to 16.1-309.1. The current law provides for confidentiality of court records, law enforcement records, and records of the Department of Corrections, if they involve juveniles. Code §§ 16.1-305, 16.1-301 and 16.1-300.¹⁶ Addressing changes in the law over time, the same Court stated that the General Assembly's concern for protecting the confidentiality of juvenile records remains unequivocally expressed in the current law.¹⁷ While the quoted opinion was issued in 1990, as described previously, the current statutory scheme further reflects this public policy of protecting juvenile records from general public disclosure. That policy is not limited to criminal records concerning juveniles, but includes scholastic, health, and other types of records, as demonstrated by the various statutes protecting juvenile records. While the general policy of FOIA is to provide open access to public records, the General Assembly has recognized that certain records should not be open to the public. Subsection B of § 2.2-3700 states that [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. This concept is reiterated in subsection A of § 2.2-3704, which provides that the mandatory disclosure requirements of FOIA may be superseded as otherwise specifically provided by law. Section 16.1-301 is such a "specific provision of law" that supersedes the mandatory disclosure requirements of FOIA, in furtherance of the public policy of protecting the confidentiality of juvenile records. If the General Assembly had intended this prohibition to apply more narrowly, the legislature could have so specified by using more restrictive language.

A comparison of the language used in § 16.1-301 to the language used in other confidentiality provisions within the same chapter of the Code further demonstrates this legislative intent. For example, § 16.1-300 refers to reports and records of children who are or have been (i) before the court, (ii) under supervision, or (iii) receiving services from a court service unit or who are committed to the Department of Juvenile Justice. Section 16.1-305, regarding court records, in different subsections refers to records of neglected and abused children, children in need of services, children in need of supervision and delinquent children, as well as to [a]ll juvenile case files, to the defendant's juvenile court delinquency records, to maintaining the confidentiality of records to the extent necessary to protect any juvenile victim or juvenile witness, and to [a]ll other juvenile records. These various descriptions further demonstrate that the General Assembly is both aware of and capable of differentiating between different types of juvenile records, and between juveniles in different positions as defendants, victims, witnesses, etc. That the General Assembly chose not to use such language in § 16.1-301, while it did use such language in other provisions, further demonstrates the legislature's intent that the prohibition of § 16.1-301 apply to all juvenile records held by law-enforcement agencies.

In light of the plain language of the statute, the Attorney General's opinions, and public policy regarding the confidentiality of juvenile records, it must be concluded that § 16.1-301 acts as a general prohibition against the release of law-enforcement records concerning any juvenile, regardless of whether the juvenile is a suspect, a victim, a bystander, or involved in a non-criminal incident. The only exceptions are those specifically stated, if the juvenile is over 14 years of age and charged with certain violent felonies, or the release is to a person authorized to inspect the records or receive the information contained therein. In conclusion, to answer the question presented, § 16.1-301 prohibits the release of law-enforcement records concerning a juvenile shot by a police officer, or a juvenile injured or killed in some other fashion, unless one of the specific exceptions listed in § 16.1-301 applies. This office recognizes that this application of § 16.1-301 may have a widespread effect upon current practices at your department and other police departments in regard to the release of records concerning juveniles. This office also recognizes that this advisory opinion may only answer part of your question, as it is limited to the question of releasing law-enforcement records concerning juveniles pursuant to requests for records. The question of whether you may voluntarily and/or verbally disseminate a juvenile's name or other information about a juvenile without providing access to public records cannot be answered by this office, as that answer lies outside the scope of FOIA. Further, should concerns remain about public access to law-enforcement records involving juveniles, you may wish to bring these concerns to the attention of the General Assembly.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹In this instance the deceased was 17 years of age. The terms "juvenile," "minor," and "child" are all defined to mean "a person less than 18 years of age" and may be used interchangeably. Va. Code § 16.1-228.
²You did not specifically state that you had received a request for records, only that you had been advised not "to release" the juvenile's name. This office is limited to providing guidance concerning the Virginia Freedom of Information Act (FOIA). Va. Code § 30-179. Thus, the analysis of your question by this office is necessarily limited to consideration of public access to law-enforcement records concerning juveniles pursuant to FOIA requests. This office cannot provide guidance regarding the release of information under other circumstances not governed by FOIA (for example, if the "release" referred to was a voluntary and unsolicited dissemination of information, such as a press release or news conference, rather than a "release" of records pursuant to a FOIA request).
³Other FOIA provisions that apply to both adults and juveniles may exempt these records from public disclosure depending on the exact circumstances. E.g., subsection D of § 2.2-3706 may exempt from disclosure the identities of victims and witnesses; subsection E of § 2.2-3706 provides an exemption for the identity of any individual providing information about a crime under a promise of anonymity. While these and other exemptions may apply, they do not differentiate between minors and adults.
⁴As a matter of legislative history, the language of the second sentence of current § 16.1-301 originates from former § 16.1-163. See Code Commission note to § 16.1-301 (1977). Former § 16.1-163 read as follows: The police departments of the cities of the State, and the police departments or sheriffs of the counties, as the case may be, shall keep separate records as to violations of law committed by juveniles, and the Division of Motor Vehicles shall keep separate records as to violations of the motor vehicle law committed by juveniles, and such records shall be withheld from public inspection and shall be exhibited only to persons having a legal interest therein and with the express approval of the judge; provided, however, that records of violations of the motor vehicle laws with reference to the operation of such motor vehicles by juveniles shall be open to public inspection. Va. Code § 16.1-163 (1975).
⁵§§ 16.1-299 through -309.1 concern juvenile records of various types held by different entities (for example, § 16.1-299 concerns fingerprints and photographs of juveniles, § 16.1-300 concerns records held by the Department of Juvenile Justice, etc.). Section 16.1-309 sets forth conditions under which the improper disclosure of identifying information concerning a juvenile is punished as a Class 3 misdemeanor.
⁶Department of Medical Assistance Svcs. v. Beverly Healthcare of Fredericksburg, 268 Va. Adv. Sh. 278, 285, 601 S.E.2d 604, 607-08 (2004)(internal citations omitted).
⁷Johnson v. Windsor Ins. Co., 268 Va. 197, 201, 597 S.E.2d 31, 34 (2004) (quoting Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)(quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934))).
⁸Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999)(quoting Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914)).
⁹A search revealed that the phrase "law-enforcement records" appears in only two places in the Code of Virginia: § 16.1-301 and § 16.1-330.1 (which uses the phrase in reference to § 16.1-301). This phrase is not defined in the Code.
¹⁰1983-1984 Op. Atty. Gen. Va. 214 n.2. The relevant language prohibiting records access under subsection A of § 16.1-301 in 1983 was substantially the same as it is today.
¹¹Id.
¹²Va. Code § 16.1-309 (2004). At the time the Attorney General's opinion was written in 1983, the quoted language referred to the Department of Corrections rather than the Department of Juvenile Justice, but was otherwise identical to the current law.
¹³1983-1984 Op. Atty. Gen. Va. 214, supra n. 6 (quoting 1977-1978 Op. Atty. Gen. Va. 219). The 1977 version of subsection A of § 16.1-301 used the phrase law-enforcement records and files in the first sentence, whereas the 1983 version used only the words law-enforcement records. The two versions were otherwise identical. Both the 1977 and 1983 versions of subsection A of § 16.1-301 contained substantially the same language prohibiting records access as the current subsection A of § 16.1-301.
¹⁴1977-1978 Op. Atty. Gen. Va. 219 (note that the confidentiality sections of Title 16.1, including § 16.1-301, allow for the release of information by court order).
¹⁵Services to Youthful Offenders, Revision of the Juvenile Code, Report of the Virginia Advisory Legislative Council, Senate Doc. No. 19 (1976) at 15.
¹⁶Lavinder v. Commonwealth, 395 S.E.2d 211, 212-13 (1990)(holding that the trial court erred in allowing juvenile court records to be used for impeachment purposes during cross-examination), reh'g en banc, 12 Va. App. 1003, 407 S.E.2d 910 (1991)(considering what test applies in measuring whether a non-constitutional error is harmless). [Note: It appears that the panel opinion reported at 395 S.E.2d 211 was not published in the Virginia Court of Appeals Reports.]
¹⁷Id. at 213.