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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-09-08
October
16, 2008
Heather M. Harvey
Richmond, 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 facsimile
of September 5, 2008 and electronic mail of September 15,
2008.
Dear Ms. Harvey:
You
have asked several questions concerning a requester's ability
to challenge a public body's decision to withhold from disclosure
certain records under the Virginia Freedom of Information
Act (FOIA). As factual background, you indicated that you
sought records concerning two rape cases that occurred in
1976, both involving the same defendant, but different victims.
You stated that both cases were tried in circuit court and
the defendant was acquitted, but two years later the same
defendant was convicted of murder in a separate case and is
presently serving a life sentence. You stated that the court
records of the cases indicate that there were audio tapes
of both cases, including testimony by the victims and investigating
officers. However, the court clerk informed you that because
there were no appeals, no transcripts of the audio tapes were
made, and the audio tapes themselves were destroyed after
ten years. Because of the limited nature of the existing court
records, you requested relevant records from the police department
that investigated these cases. You related that the police
asked for an advance deposit to cover search charges, and
stated that [i]f responsive records are found and they
are contained in the investigatory case file or otherwise
subject to [Virginia Code § 2.2-3706(F)(1)], then we
will withhold the records and provide you only with information
on the volume and subject matter of the withheld records.
The police also acknowledged you would be entitled to criminal
incident information about these cases.
You further indicated that the Town Attorney
who represents the police department confirmed that the police
department policy is to invoke subdivision F 1 of § 2.2-3706
(the criminal records exemption) whenever it is applicable,
and that they would do so in this situation. You stated that
he also said that to prevail in a challenge against that decision,
the police would only have to state their decision to invoke
the exemption, and that it would not be relevant whether the
decision was justified or reasonable under the circumstances.
Based upon these facts, you ask whether a decision to invoke
the criminal records exemption is subject to challenge, and
if so, what is the legal standard of review and who bears
the burden of proof?
Subsection
E of § 2.2-3713 states that [i]n any action to enforce
the provisions of this chapter, the public body shall bear
the burden of proof to establish an exemption by a preponderance
of the evidence. Under this standard, therefore, the
police would bear the burden to prove by a preponderance of
the evidence that the criminal records exemption applied to
the records you requested. However, you do not appear to challenge
whether the exemption applies, but instead challenge the decision
not to disclose the records even though the exemption applies.
You indicated that you believe the records should be released
because the cases are over 30 years old, the cases have been
adjudicated at public trial, the court case records are public,
and there is no ongoing investigation that would be jeopardized
if the records were released. Therefore you feel the rights
of taxpayers who fund police investigations should be balanced
against the police department's interests in this situation,
and the records should be disclosed. In essence, your arguments
do not challenge whether the records fall within the terms
of the exemption, but instead challenge the exercise of discretion
in choosing to withhold the records.
As quoted
above, FOIA shifts the burden to the public body to establish
the exemption, but does not address any further challenge
to the public body's choice to exercise the exemption once
it is established. You ask whether a judge would even consider
such an argument. In other contexts, legal challenges can
be brought alleging abuse of discretion in administrative
decision-making. For example, in regard to certain decisions
concerning historic sites, subdivision A 3 of § 15.2-2306
provides that a court may reverse or modify the decision
of the governing body, in whole or in part, if it finds upon
review that the decision of the governing body is contrary
to law or that its decision is arbitrary and constitutes an
abuse of discretion, or it may affirm the decision of the
governing body. Similarly, subsection 2 f of § 28.2-1313
states that certain decisions of the wetlands board may be
modified, remanded, or reversed if the decision was [a]rbitrary,
capricious, or an abuse of discretion; subsection 2 f
of § 28.2-1413 contains identical language. Similar language
concerning challenges to decisions made as abuses of discretion
also appears in § 38.2-6200, regarding the Interstate
Insurance Product Regulation Compact, and in § 55-545.04,
concerning certain discretionary trusts. However, as previously
stated, FOIA itself does not contain such language, so there
is no explicit statutory basis to challenge the custodian's
decision to withhold records when an exemption applies. That
does not necessarily mean that you cannot bring such a challenge,
only that the statute itself is silent. For example, in a
case concerning a county board of supervisor's abandonment
of a road, the Virginia Supreme Court stated that the General
Assembly made no provision for an appeal to a court from the
Board's findings and action under this section. In the absence
of such a provision we may not review the Board's action in
the absence of fraud or manifest abuse of discretion.1
While these examples, and numerous others that would beyond
the scope of this opinion, show that many discretionary decisions
may be challenged as being arbitrary, capricious, or an abuse
of discretion, I am unaware of any reported cases or opinions
in Virginia that address such a challenge under FOIA. All
of the statutes and cases I have seen presenting these types
of challenges were in other factual and legal contexts. Should
you choose to pursue such a challenge, therefore, it would
appear to present a novel issue of law.
As a
final matter, you ask what is the exercise of discretion,
if any, when the exemption states that the records in question
are excluded from the provisions of this chapter, but
may be disclosed by the custodian, in his discretion,
and the custodian chooses not to disclose the records. In
other words, it appears that the exemption excludes the records
from mandatory disclosure, the custodian has chosen not to
disclose them, and so there is no discretionary action to
be challenged. Following this interpretation, the custodian's
discretion is only exercised if the custodian releases the
records. However, the choice not to disclose is essentially
the same thing as the choice to withhold. The alternative
would be to release the records. As the custodian may choose
either course of action, then it follows that regardless of
whether the custodian withholds or discloses the records,
the custodian is exercising his discretion.2
By contrast,
note that there are situations where discretion is eliminated.
For example, 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. (Emphasis added.)
The use of the mandatory term shall does not leave
any discretion to be exercised by the custodian. In this instance,
the public body must release the records addressed by this
provision. As a contrasting example where records must be
withheld and there is no discretion to disclose, subsection
A of § 63.2-102 reads, in part, as follows: All records,
information and statistical registries of the Department and
local boards and other information that pertain to public
assistance and child support enforcement provided to or on
behalf of any individual shall be confidential and
shall not be disclosed except to persons specified
hereinafter and to the extent permitted by state and federal
law and regulation. (Emphasis added.) Again, the use
of the mandatory term shall does not leave any discretion
to be exercised by the custodian. Contrast the language of
these statutes with the language used throughout FOIA: the
following records are excluded from the provisions of this
chapter, but may be disclosed by the custodian, in his discretion,
except where such disclosure is prohibited by law.3
Using this language, FOIA provides the custodian with the
choice to withhold records, or to disclose records. Regardless
of which action the custodian chooses, he has made a choice,
and that choice is an exercise of the discretion granted under
FOIA.
Thank you for contacting this office. I
hope that I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1AMOCO
v. Leaman, 199 Va. 637, 649, 101 S.E.2d 540, 550 (Va.
1958); see also Hudson v. AMOCO, 152 F. Supp. 757,
766-67 (E.D.Va. 1957)("As the General Assembly made
no provision for an appeal to any court, from the resolution
of the Board making such a finding, it must be assumed that
courts were not intended to review such findings in the absence
of fraud or manifest abuse of discretion.").
2You also asked how the interpretation might differ
if instead of stating that the records are excluded...but
may be disclosed, the statute instead stated only that
the records at issue may be withheld from disclosure by
the custodian. While there may be situations where such
a distinction would have a discernable effect, for purposes
of this opinion that inquiry would be merely speculative,
and therefore we decline to entertain it at this time.
3See §§ 2.2-3705.1 through 2.2-3706
(all using the quoted language).
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