VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-08

May 19 , 2008

David A. Drachsler
Alexandria, 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 April 23, 2008.

Dear Mr. Drachsler:

You have asked whether the County of Prince William complied with the Virginia Freedom of Information Act (FOIA) in denying a records request you made. You stated that you made a request to the County asking for records that establish or set forth guidelines for county police officers to implement the county's policy on inquiring into a person's citizenship or immigration status. In particular, you sought any document directing Prince William police officers on how to determine that there is probable cause to believe a person detained by them is in violation of federal immigration law. After stating that you have been provided information made available to the public responsive to your request, the County denied your request in its entirety.¹ The County indicated that responsive documents included investigative techniques and procedures of a law enforcement agency that are exempt from FOIA under subsection D of § 2.2-3706. To complete its response the County listed the volume and subject matter of 11 different responsive records that were withheld. Your question to this office is whether subsection D of § 2.2-3706 exempts from disclosure any and all documents and records which establish the policy and guidelines for determining whether there is probable cause to believe a person lawfully detained is in violation of federal immigration law.

The policy of FOIA is set forth in subsection B of § 2.2-3700, and requires that [a]ll public records ...shall be presumed open, unless an exemption is properly invoked....Any exemption from public access to records...shall be narrowly construed and no record shall be withheld...to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. Subsection D of § 2.2-3706 states that [t]he identity of any victim, witness or undercover officer, or investigative techniques or procedures need not but may be disclosed unless disclosure is prohibited or restricted under § 19.2-11.2. In this instance the County did not indicate that the documents concerned the identity of any victim, witness, or undercover officer, so only the portion of the exemption concerning investigative techniques or procedures is relevant to this inquiry.

FOIA itself does not define the phrase investigative techniques or procedures, nor does it appear to be defined elsewhere in the Code. There do not appear to be any legal precedents interpreting this exemption from any Virginia court or the Office of the Attorney General. According to rules of statutory construction, in the absence of a statutory definition, a statutory term is considered to have its ordinary meaning, given the context in which it is used.² To investigate means to observe or inquire into in detail; examine systematically.³ Technique means the systematic procedure by which a complex or scientific task is accomplished.⁴ Procedure has multiple relevant meanings: 1. A manner of proceeding; way of performing or effecting something. 2. An act composed of steps; course of action.⁵ Combining these definitions in the context of this law enforcement exemption, investigative techniques or procedures therefore means the systematic procedure, manner, or course of action by which law enforcement personnel observe, inquire into, or examine a matter.

Your request asked for records directing Prince William police officers on how to determine that there is probable cause to believe a person detained by them is in violation of federal immigration law. Following the definitions in the previous paragraph, it is apparent that how an officer determines probable cause in this context is a procedure or course of action by which the officer observes, inquires into, or examines someone's probable immigration status. In other words, it appears that your request specifically asks for records of investigative techniques or procedures that fall within the ambit of subsection D of § 2.2-3706. Therefore, to the extent the records withheld by the County contain information about such investigative techniques or procedures, FOIA allows such records to be withheld.

Two additional points need to be stated regarding this request and response. First, the County listed 11 documents in its response, stating that these were training documents regarding investigative techniques and procedures of the police department. Based on the descriptions given, it appears that these are records of the actual training provided to the police officers.⁶ However, I note that one of the documents is described as a video montage of speakers at various Board of County Supervisors' meetings. Subsection I of § 2.2-3707 provides that minutes and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter. It is not clear from the facts presented whether the video montage at issue was created from presentations given at open meetings of the Board or closed meetings, nor whether any material was added to the footage when the montage was created. While recordings from properly closed meetings and any additional exempt content may be withheld, any aspects of this video montage that are merely excerpts from open meetings should be disclosed.

Following the above example, the County may be well advised to review all of the withheld records to determine if each record in fact concerns investigative techniques or procedures in its entirety, or if instead, only portions of each record are about such investigative techniques or procedures. If it is the latter case, FOIA provides that only the exempt portions of each record may be withheld, while the remainder must be released.

Second, in examining these records and responding to your request there must be a clear differentiation between records regarding policy and records regarding investigative techniques or procedures. Your question presented to this office asked whether the exemption at issue could be used to withhold any and all documents and records which establish the policy and guidelines for determining whether there is probable cause to believe a person lawfully detained is in violation of federal immigration law. The answer to that question is no. The exemption may not be used to withhold records stating or establishing policy or general guidelines, it may only be used to withhold records of investigative techniques or procedures. In other words, a record may only be exempted by this aspect of subsection D of § 2.2-3706 to the extent the record is about the means by which an inquiry is conducted. Based on the wording of your request to the County, seeking records on how to determine that there is probable cause, your request by its own terms specifically asks for records concerning the means of inquiry, records that may be withheld under this exemption.

Generally, records concerning policy matters must be disclosed, but records specifying the methods by which officers will actually implement policy in conducting investigations may be withheld. The distinction between policy and implementation of policy is critical to the application of this exemption as it is the threshold between records that must be disclosed (policy) and those that may be withheld (implementation). For example, in this context the policy appears to be that the police department will inquire into a detainee's immigration status if there is probable cause to believe the detainee is in violation of federal immigration law. Records about that policy would not be subject to this exemption, as they do not concern investigative techniques or procedures. By contrast, records about the method by which the probable cause inquiry is conducted concern the means of implementing the policy, and constitute records of investigative techniques or procedures that may be withheld from disclosure.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹It appears in context that the request at issue here was a follow-up to a prior request, and that the County provided documents regarding the County's policies on immigration violations in response to the prior request. My understanding is that the request at issue here sought more specific documents regarding implementation of those policies. I further note that information on the County's immigration enforcement policy is available on the Police Department's website (http://www.pwcgov.org/default.aspx?topic=040074003460004636, last visited May 15, 2008) and the Board of Supervisor's website (http://www.pwcgov.org//default.aspx?topic=040059000300002294, last visited May 15, 2008).
²Freedom of Information Advisory Opinion 12 (2002)(citing Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01).
³The American Heritage Dictionary 675 (2d College ed. 1982).
⁴Id. at 1248.
⁵Id. at 987.
⁶The descriptions indicated that among others, the records withheld included an introduction by the Chief of Police, presentations and legal instruction on the relevant General Orders, a presentation from a representative from Immigration and Customs Enforcement, training scenarios and conclusion, and a DVD recording of each portion of the training given.