Sunrise over V.A. Capitol.


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.


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).