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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-08-13
November
7 , 2013
Mike
Mather
WTKR Television
Norfolk, 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 September 30,
2013.
Dear
Mr. Mather:
You have asked four specific questions regarding access
to certain law enforcement records under the Virginia
Freedom of Information Act (FOIA), detailed separately
below. As background to your questions, you stated
that a driver crashed his car head-on into another
car, killing a mother and her daughter. You indicated
that court records showed that a man by the same name
as the driver, as identified by the State Police,
had been convicted of a variety of driving, drug,
and criminal offenses. You requested from the State
Police the date of birth (DOB) for the driver involved
in the crash in order to confirm that it was the same
person as in the court records. You stated that the
State Police, apparently treating your request for
DOB as a FOIA request for public records,1
replied as follows: "As of July 1, 2013, Virginia
FOIA changed and DOBs are defined as personal information.
VSP no longer releases the DOB of an individual."
The response cited §§ 2.2-3705.1(10) and
2.2-3706(B) as the sections that had changed. You
asked for more information and were told that the
DOB held by the State Police
is
either in an administrative, non-criminal record,
which would be personal identifying information
exempt under 2.2-3706(B), or it would be in our
criminal investigative file exempt under 2.2-3706(A)(2)(a).
In either case we will exercise our discretion not
to release that information other than full name
and age. The requirement to release information
relative to the identity of an adult who is arrested
under 2.2-3706(A)(1)(c) does not spell out what
information must be provided. VSP provides name
and age only.
The
reply continued by specifying that the DOB would be
included on the FR 300 Crash Report, but that the
State Police
are
no longer authorized to release the FR 300 or any
information contained on it. In fact the press could
not get a copy of the report unless they were involved
in the crash and the 46.2-379 information does not
include date of birth. Even so only the 'Department'
referring to DMV [the Department of Motor Vehicles],
can release 46.2-379 information.
Given
this background, you also expressed that DOB is a
valuable tool to match accused criminals with criminal
histories recorded in court records, and that without
DOB, it will be more difficult to identify people
charged with crimes.
Turning to your first question, you asked whether
any "2013 legislative changes to FOIA either
define dates of birth as personal information not
subject to release, or prohibit law-enforcement from
releasing a suspected criminal's date of birth."
FOIA does not contain any definition of personal
information, nor does FOIA contain the phrase
date of birth. However, note that a different
exemption does refer to a definition of personal
information in the Government Data Collection
and Dissemination Practices Act (GDCDPA).2
The only prohibition on release contained in FOIA
is set forth in subdivision A 3 of § 2.2-3706:
The identity of any individual providing information
about a crime or criminal activity under a promise
of anonymity shall not be disclosed. There was
no FOIA legislation in 2013 that defines personal
information or prohibits the release of DOB. However,
note that § 2.2-3706 was reorganized in 2013
pursuant to Senate Bill 12643 which was
sponsored by the FOIA Council after three years of
study. As stated in the summary of that bill, the
only
substantive changes in the bill are to (i) expand
to the state law-enforcement agencies the ability
to withhold portions of noncriminal incident information
and (ii) allow law-enforcement agencies to make
a verbal response for requests for criminal incident
information. The bill also clarifies that personnel
records of persons employed by a law-enforcement
agency are not noncriminal records but subject to
the personnel records and background investigation
records exemptions. The bill contains technical
amendments and is a recommendation of the Virginia
Freedom of Information Advisory Council.
SB
1264 does not contain any definition of personal
information, nor does it prohibit the release
of personal information, except as quoted
above in subdivision A 3 of § 2.2-3706. Therefore
the answer to your first question is no.4
Your second question asked whether a criminal's date
of birth is defined as personal identifying information
under subsection B of § 2.2-3706. As stated above,
FOIA does not contain any such definition, therefore
the answer is again, no. However, as you expressed
in your inquiry, DOB can be used as personal identifying
information, especially to differentiate between individuals
with the same name. Therefore even though FOIA does
not define personal identifying information
explicitly, it is clear that DOB may in fact be used
to identify an individual. Note that subsection B
of § 2.2-3706 provides that those portions
of noncriminal incident or other noncriminal investigative
reports or materials that contain identifying information
of a personal, medical, or financial nature may be
withheld where the release of such information would
jeopardize the safety or privacy of any person.
Therefore, in the context of noncriminal records,
DOB may be withheld as identifying information of
a personal nature if the release of DOB would jeopardize
the safety or privacy of any person.
Third, you asked whether an arrestee's date of birth
would be exempt from release under subsection A 2
a of § 2.2-3706. That subsection exempts from
mandatory disclosure
Criminal
investigative files, defined as any documents and
information, including complaints, court orders,
memoranda, notes, diagrams, maps, photographs, correspondence,
reports, witness statements, and evidence relating
to a criminal investigation or prosecution, other
than criminal incident information subject to release
in accordance with subdivision 1 a.
There
is no special provision regarding DOB in this exemption,
nor any specific mention of DOB whatsoever. A criminal
investigative file that is exempt under this provision
is exempt in its entirety, whether it contains DOB
or not. Note that the prefatory language of subdivision
A 2 provides that the exempt records may be disclosed
by the custodian, in his discretion, except where
such disclosure is prohibited by law. Therefore,
the custodian could choose to release DOB or other
information from criminal investigative files, in
his discretion, but is not required to do so.
Fourth, you asked whether State Police crash reports,
specifically the "FR-300" cited, are exempt
from release in their entirety. This office has no
specific knowledge regarding the crash reporting forms
used by the State Police, nor does FOIA specifically
address motor vehicle accidents. However, you indicated
that the response you received cited Virginia Code
§ 46.2-379. While that provision is outside of
FOIA, and therefore outside the advisory authority
of this office, it is my understanding that it does
address access to motor vehicle accident reports,
and that it was amended through legislation in 2013.
Section 46.2-379 reads as follows:
All
accident reports made by investigating officers
shall be for the confidential use of the Department
[of Motor Vehicles] and of other state agencies
for accident prevention purposes and shall not be
used as evidence in any trial, civil or criminal,
arising out of any accident. The Department shall
disclose from the reports, on request of any person,
the date, time, and location of the accident, and
the names and addresses of the drivers, the owners
of the vehicles involved, the injured persons, the
witnesses, and one investigating officer.
While
this office cannot interpret this section, it is clear
on its face that it requires the disclosure of certain
information, but that the information required to
be disclosed does not include DOB. Also note that
this provision does not state that the Department
of Motor Vehicles (DMV) shall release the accident
report itself, but only that DMV shall disclose
from the reports certain information.
Finally, you also asked whether the release of a name
and age sufficient to satisfy the requirement to release
[i]nformation relative to the identity of any
individual, other than a juvenile, who is arrested
and charged under subsection A 1 c of §
2.2-3706 . As indicated in the reply from the State
Police, FOIA does not specify what information must
be provided relative to the identity of any individual...who
is arrested and charged. As a practical matter,
the type and amount of information a law-enforcement
agency might have about an individual who has been
arrested and charged may often vary in different circumstances.
However, even without an explicit statutory definition,
there does not appear to be any question that an individual's
DOB is information relative to the identity
of that individual. Therefore, in a criminal context
where an adult has been arrested and charged, if the
law-enforcement agency has the arrestee's DOB, that
is the type of information subject to mandatory release
under subsection A 1 c § 2.2-3706. Note that
this provision of FOIA does not require the release
of a specific type of record, only the information
relative to the identity of any individual, other
than a juvenile, who is arrested and charged.
In this instance, I note that you did not specify
whether the driver involved in the crash was arrested
and charged with a crime. That is an important fact
to consider. If he was not arrested and charged, and
the matter is handled as a noncriminal incident, then
the State Police may withhold the driver's DOB pursuant
to subsection B of § 2.2-3706, as discussed above.
However, that subsection would not apply if the driver
was arrested and charged with a crime. In that case,
while the State Police could correctly withhold criminal
investigative files in their entirety, the driver's
DOB would have to be released because it is information
relative to the identify of an adult arrestee. Note
that the provisions of subdivision A 1 of § 2.2-3706
are required releases, including the requirement to
release information relative to the identity of adults
arrested and charged. By contrast, the provisions
of subdivision A 2 are exemptions that allow for release
in the discretion of the custodian. Because the provisions
of subdivision A 1 are mandatory, and those of subdivision
A 2 are discretionary, any conflict between them must
be resolved in favor of mandatory release. This result
comports with the policy statement of FOIA in §
2.2-3701:
The
provisions of this chapter shall be liberally construed
to promote an increased awareness by all persons
of governmental activities and afford every opportunity
to citizens to witness the operations of government.
Any exemption from public access to records or meetings
shall be narrowly construed and no record shall
be withheld or meeting closed to the public unless
specifically made exempt pursuant to this chapter
or other specific provision of law.
Therefore
while a criminal investigative file does not have
to be released, the DOB of an adult arrestee must
be released upon request, if the law-enforcement agency
has that information.
Your inquiry has also raised questions regarding the
interpretation of the phrase information relative
to the identity of any individual as used in
subsection A 1 c of § 2.2-3706. Typical identifiers
may include such things as name, residential address,
race, gender, DOB, height, weight, eye color, hair
color, and other information.5 However,
the phrasing information relative to the identity
of any individual does not specify exactly what
information must be released. Applying the policy
of FOIA that the provisions of this chapter shall
be liberally construed to promote an increased awareness
by all persons of governmental activities, it
would appear that compliance with this policy would
require a law-enforcement agency to fully disclose
all information that the law-enforcement agency has
relative to the identity of any adult who
has been arrested and charged. If the members of the
General Assembly disagree with this opinion or want
to provide more clarity, they may wish to amend the
language of this section.
Finally, we also note that it is not entirely clear
whether your original request specifically asked for
public records containing the DOB of the driver, or
merely asked the question of what was the DOB of the
driver. Keep in mind that FOIA specifically applies
to requests to inspect or copy public records, but
does not govern requests that do not ask for public
records. As a practical matter, where the goal is
to confirm that the information you already have is
correct, both parties might handle the situation more
easily through a conversation and by providing verbal
confirmation rather than treating it as a request
for public records under FOIA.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Note
that if you simply asked for the driver's DOB, without
asking to copy or inspect a public record, that would
not be a FOIA request because FOIA only grants rights
in the context of public records and public meetings.
FOIA does not require that public bodies answer questions
outside of those contexts. However, if you requested
a document containing DOB, that would be a FOIA request.
2Subdivision 10 of § 2.2-3705.1 referring
to the definition in § 2.2-3801; neither of these
provisions was amended in 2013.
32013 Acts of Assembly, c. 695.
4Note that there are many exemptions that
apply to records that contain personal information,
such as exemptions for personnel records, scholastic
records, health records, customer account records,
and many more, but there is no general exemption that
applies to personal information categorically.
5Sample
information taken from a Virginia Uniform Summons
form VUS Rev. 7-01-12 and Circuit Court form CC-1302
Summons.
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