VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-25

March 20, 2025

Aaron Stevenson
Vinton, Virginia
Request received via email

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 email of January 2, 2024.

Dear Mr. Stevenson:

You have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) on whether the University of Richmond Police Department (the URPD) is considered a "public body" and, therefore, subject to FOIA. More specifically, you have submitted the following questions for consideration

1. Is the URPD a public body obligated by FOIA to respond to requests for public records?

2. Did the URPD violate FOIA when it refused to respond to my request for its policy manual?

Factual Background

As background information, on November 26, 2023, you sent an email to the URPD invoking the provisions of FOIA and requesting a copy of its department policy manual. On December 11, the URPD Chief of Police (the Chief) responded, refusing your request and denying that the URPD is a public body within the meaning of FOIA. You included a copy of this correspondence for review.

In your request for an advisory opinion, you wrote that the University of Richmond (the University) "is a private institution of higher education located in Richmond, Virginia" and "has established a campus police department under the authority of § 23.1-810." You also stated that the URPD "employs police officers who are employees of the university and are not employees of the Commonwealth or any of its political subdivisions."

You also wrote that FOIA "imposes its requirements only on 'public bodies'" that "are generally defined to be governmental entities," while emphasizing that FOIA contains an applicable provision within its definition of "public body" in § 2.2-3701 of the Code of Virginia to include private police departments. The FOIA definition of "public bodies" specifically provides that "private police departments as defined in § 9.1-101 shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records."

You further wrote that the "URPD seems to meet this definition" as it employs private police officers and is operated by the University, a private entity authorized by § 23.1-810 of the Code of Virginia to establish a police department. You concluded that all together "it would seem that URPD is a public body for the purposes of [FOIA] that pertain to access to public records, and that it is obligated to respond to a request for public records in accord with [FOIA's] provisions."
The Chief stated in his response email denying your request for the department manual that the "URPD is a private state certified campus police department not established under § 9.1-101." The Chief also stated that "[a]s a campus police department, URPD does have a statutory obligation to disclose certain criminal incident information, but the source of that obligation is Virginia Code § 23.1-817, not FOIA." The Chief acknowledged that § 23.1-817 of the Code of Virginia "requires campus police departments to permit any citizen of the Commonwealth of the [sic] Virginia, currently registered student of the University, or parent of a registered student to inspect and copy criminal incident information." The Chief further wrote that § 23.1-817 of the Code of Virginia provides that the criminal incident information shall include:

(i) the date, time, and general location of the alleged crime;

(ii) a general description of injuries suffered or property damaged or stolen; and

(iii) the name and address of any individual arrested as a result of felonies committed against persons or property or misdemeanors involving assault, battery, or moral turpitude reported to the campus police, except where disclosure is prohibited by law [or, if the release of such information is likely to jeopardize an ongoing criminal investigation or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until such damage is no longer likely to occur from the release of such information.

The Chief maintains that the URPD is not a "private police department" subject to the public records provisions of FOIA but is instead a "campus police department" established under § 23.1-810 of the Code of Virginia and therefore is not subject to FOIA. You also acknowledged that the URPD in a previous response to you referenced the applicability of Chapter 224 of the Acts of Assembly of 2015, which added "private police department[s]," as defined in § 9.1-101 of the Code of Virginia, to the FOIA definition of "public body" in § 2.2-3701 of the Code of Virginia.¹ Chapter 224 of the Acts of Assembly of 2015 also added the following provision to the definition of "private police department" in § 9.1-101 of the Code of Virginia:

Any private police department in existence on January 1, 2013, that was not otherwise established by statute or an act of assembly and whose status as a private police department was recognized by the Department [of Criminal Justice Services (DCJS)] at that time is hereby validated and may continue to operate as a private police department, provided it complies with the requirements set forth herein.²

You pointed out that the URPD's earlier response further emphasized the fact that the DCJS list of private police departments in existence as of January 1, 2013, did not include the URPD or any other campus police department.³ You clarified that "[b]ased on this purported distinction, URPD concludes that it is not a 'public body' and that it is therefore not obligated to respond to requests for records under [FOIA]."

You have provided a rebuttal to the URPD's position that it is a "campus police department" and not a "private police department" subject to the public records provisions of FOIA. First, you argue that "the definition for 'private police department' applies only to Chapter 1 of Title 9.1 and Chapter 23 of Title 19.2." You also contend that "[t]he fact that Title 23.1 uses the term 'campus police department' to collectively refer to the departments of both public and private universities is irrelevant." You maintain that "[t]he Code of Virginia does not actually 'distinguish' between 'private police departments' and 'campus police departments' as argued" but that "the Code uses different terms in different statutes to accomplish different policy objectives."

Second, you argue that "the list of private police departments found in Chapter 224 of the Acts of Assembly of 2015 does not purport to be a complete list of private police departments" and "that gives effect to the statutory requirement that a private police department be 'authorized by statute or an act of assembly.'"⁴ You assert that the URPD "didn't need to be specifically authorized by Chapter 224, because its existence was already authorized by Virginia Code § 23.1-810." Lastly, you contend that "the URPD is both a private police department as defined by § 9.1-101 and a campus police department whose existence is authorized by § 23.1-810" and since "it's a private police department, it's also a public body for the purpose of a request for records under [FOIA]."

Analysis

FOIA policy as stated in subsection B of § 2.2-3700 of the Code of Virginia provides that:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

FOIA policy also provides that:

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. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

A first step in understanding whether FOIA applies to a specific entity is making a determination of whether such entity meets the definition of a "public body" under FOIA. Pursuant to § 2.2-3701 of the Code of Virginia, a "public body" is defined as:

any legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds. It shall include (i) the Virginia Birth-Related Neurological Injury Compensation Program and its board of directors established pursuant to Chapter 50 (§ 38.2-5000 et seq.) of Title 38.2 and (ii) any committee, subcommittee, or other entity however designated of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee, or entity because it has private sector or citizen members. Corporations organized by the Virginia Retirement System are "public bodies" for purposes of this chapter.

For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers and private police departments as defined in § 9.1-101 shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records. (emphasis added.)

In this matter, the relevant language in the definition of "public body" as it pertains to public records is "private police departments as defined in § 9.1-101 shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records."

In providing guidance on statutory interpretation, the Supreme Court of Virginia declared that "the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results."⁵ The Supreme Court of Virginia also stated that:

Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.⁶

Furthermore, the Supreme Court of Virginia has also stated that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary."⁷

This office's authority is limited to the provisions of Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 of the Code of Virginia regarding FOIA matters; however, as the definition of "public body" in § 2.2-3701 of the Code of Virginia specifically references "private police departments as defined in § 9.1-101," it is necessary to consider the referenced definition even though it is outside of FOIA in order to interpret FOIA's application to these entities.

Section 9.1-101 of the Code of Virginia provides that "private police department" means:

any police department, other than a department that employs police agents under the provisions of § 56-353, that employs private police officers operated by an entity authorized by statute or an act of assembly to establish a private police department or such entity's successor in interest, provided it complies with the requirements set forth herein. No entity is authorized to operate a private police department or represent that it is a private police department unless such entity has been authorized by statute or an act of assembly or such entity is the successor in interest of an entity that has been authorized pursuant to this section, provided it complies with the requirements set forth herein. The authority of a private police department shall be limited to real property owned, leased, or controlled by the entity and, if approved by the local chief of police or sheriff, any contiguous property; such authority shall not supersede the authority, duties, or jurisdiction vested by law with the local police department or sheriff's office including as provided in §§ 15.2-1609 and 15.2-1704. The chief of police or sheriff who is the chief local law-enforcement officer shall enter into a memorandum of understanding with the private police department that addresses the duties and responsibilities of the private police department and the chief law-enforcement officer in the conduct of criminal investigations. Private police departments and private police officers shall be subject to and comply with the Constitution of the United States; the Constitution of Virginia; the laws governing municipal police departments, including the provisions of §§ 9.1-600, 15.2-1705 through 15.2-1708, 15.2-1719, 15.2-1721, 15.2-1721.1, and 15.2-1722; and any regulations adopted by the [Criminal Justice Services] Board that the Department [of Criminal Justice Services] designates as applicable to private police departments. Any person employed as a private police officer pursuant to this section shall meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers pursuant to this chapter. A private police officer is not entitled to benefits under the Line of Duty Act (§ 9.1-400 et seq.) or under the Virginia Retirement System, is not a "qualified law enforcement officer" or "qualified retired law enforcement officer" within the meaning of the federal Law Enforcement Officers Safety Act, 18 U.S.C. § 926B et seq., and shall not be deemed an employee of the Commonwealth or any locality. An authorized private police department may use the word "police" to describe its sworn officers and may join a regional criminal justice academy created pursuant to Article 5 (§ 15.2-1747 et seq.) of Chapter 17 of Title 15.2. Any private police department in existence on January 1, 2013, that was not otherwise established by statute or an act of assembly and whose status as a private police department was recognized by the Department [of Criminal Justice Services] at that time is hereby validated and may continue to operate as a private police department as may such entity's successor in interest, provided it complies with the requirements set forth herein.

For a private police department to operate legally, such entity must have been "authorized by statute or an act of assembly or such entity is the successor in interest of an entity that has been authorized pursuant to [§ 9.1-101 of the Code of Virginia]" and complies with all applicable requirements set forth under Virginia law.

It is important to note that the definition of "law-enforcement officer" in § 9.1-101 of the Code of Virginia includes "any full-time or part-time employee of a private police department . . . who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth" and a "campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1."⁸ As there are separate references to both entities, it appears that the General Assembly recognizes private police officers and campus police officers to be distinct legal entities.

"Any person employed as a private police officer pursuant to this section shall meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers pursuant to [Chapter 1 (§ 9.1-100 et seq.) of Title 9.1 of the Code of Virginia]."⁹ Likewise, "any private institution of higher education that establishes a campus police department shall require each officer to comply with the training or other requirements for law-enforcement officers established by the Department of Criminal Justice Services pursuant to Chapter 1 (§ 9.1-100 et seq.) of Title 9.1."¹⁰ Essentially, both private police officers and campus police officers are required to meet the same minimum compulsory training and other requirements for law-enforcement officers established by the DCJS. Furthermore, it would appear to be unnecessary for the General Assembly to reiterate the same minimum training requirements for both private police officers and campus police officers unless the legislature considers them to be separate entities.

The University is considered a "private institution of higher education" as defined in § 23.1-100 of the Code of Virginia. Section 23.1-810 of the Code of Virginia provides that:

The governing board of each private institution of higher education may establish, in compliance with the provisions of this article, a campus police department and employ campus police officers upon appointment as provided in § 23.1-812. Except as such provisions apply exclusively to public institutions of higher education or employees, the provisions of this article shall apply to the appointment and employment of officers and the operation, powers, duties, and jurisdiction of campus police departments at private institutions of higher education, and such departments are subject to and shall enjoy the benefits of this article. However, to be qualified to use the word "police" to describe the department or its officers, any private institution of higher education that establishes a campus police department shall require each officer to comply with the training or other requirements for law-enforcement officers established by the Department of Criminal Justice Services pursuant to Chapter 1 (§ 9.1-100 et seq.) of Title 9.1.

Thus, the University may establish a campus police department and appoint campus police officers as provided in § 23.1-812 of the Code of Virginia.

The University may also establish an auxiliary police force in accordance with § 23.1-811 of the Code of Virginia, which provides in relative part that:

The governing board of each public institution of higher education and private institution of higher education, for the further preservation of public peace, safety, and good order of the campus community, may establish, equip, and maintain an auxiliary police force.

The members of an auxiliary police force, when called into service pursuant to procedures established by the governing board, have all the powers, authority, and immunities of campus police officers at public institutions of higher education.¹¹ Prior to appointment as a campus police officer or member of an auxiliary police force, each individual must undergo a background investigation pursuant to subsection A of § 23.1-812 of the Code of Virginia to "determine whether the individual is responsible, honest, and in all ways capable of performing the duties of a campus police officer."

Subsection B of § 23.1-812 of the Code of Virginia provides that:

Upon application of the governing board of a public institution of higher education or private institution of higher education, the circuit court of the locality in which the institution is located may, by order, appoint the individuals named in the application to be campus police officers or members of an auxiliary police force at such institution.

Hence, the applicable circuit court appoints individuals to be campus police officers or members of an auxiliary police force for the sponsoring institution of higher education, but individuals employed as officers with private police departments are not required to undergo this process. The separate means of establishing private police departments and campus police departments and the different manner in which the entities hire and appoint their respective officers further indicates that they are not alike but are rather noticeably distinct from one another under Virginia law.

The jurisdictional authority of a private police department pursuant to § 9.1-101 of the Code of Virginia is "limited to real property owned, leased, or controlled by the entity and, if approved by the local chief of police or sheriff, any contiguous property." Yet, this authority "shall not supersede the authority, duties, or jurisdiction vested by law with the local police department or sheriff's office including as provided in §§ 15.2-1609 and 15.2-1704." While subsection B of § 23.1-815 of the Code of Virginia provides in relative part that campus police officers or members of an auxiliary police force:

shall be deemed police officers of localities who may exercise the powers and duties conferred by law upon such police officers, including the provisions of Chapters 5 (§ 19.2-52 et seq.), 7 (§ 19.2-71 et seq.), and 23 (§ 19.2-387 et seq.) of Title 19.2, (i) upon any property owned or controlled by the public institution of higher education or private institution of higher education, or, upon request, any property owned or controlled by another public institution of higher education or private institution of higher education, and upon the streets, sidewalks, and highways immediately adjacent to any such property . . ..

There are a few similarities between a private police department and a campus police department. In general, the powers and duties of private police officers and campus police officers are limited to the jurisdictional boundaries of the real property owned, leased, or controlled by their employing entities. Both private police departments and campus police departments are authorized to enter into memorandums of understanding and mutual aid agreements with applicable local law-enforcement agencies to address the duties and responsibilities of the parties while conducting criminal investigations and operational support.¹² Officers employed by both entities must meet the minimum training and other requirements for law-enforcement officers established by DCJS. Like private police officers, who "shall not be deemed an employee of the Commonwealth or any locality," campus police officers for private institutions of higher education are employees of the private institution and are not considered employees of the Commonwealth or any locality.¹³

Even though these factors illustrate that a private police department and a campus police department may be alike in some slight degree, there are more differences that distinguish these entities from one another. Effectively, a private police department and a campus police department are not the same. Authorization by statute or an act of assembly is required to establish a private police department, whereas the governing board of a private institution of higher education may establish a campus police department as provided by statute.¹⁴ The hiring process for private police officers and the appointment process for campus police officers are notably dissimilar.¹⁵ Furthermore, the General Assembly has invoked specific statutory provisions applicable to private police departments and campus police departments separately. No campus police department of a public or private institution of higher education, including the URPD, was included in the list of private police departments recognized by DCJS in Chapter 224 of the Acts of Assembly of 2015.¹⁶

Finally, there is no explicit provision in FOIA for campus police departments of private institutions of higher education to be considered a public body. In Transparent GMU v. George Mason Univ., the Circuit Court of Fairfax County, in determining whether a private, nonprofit foundation was a public body under FOIA, stated that:

The doctrine of openness does not extend so far as make available for public inspection the records of a private entity. Where the Virginia General Assembly has determined that certain entities ought to be subjected to [FOIA,] it has specifically named them.¹⁷

The Circuit Court further added that:

Virginia courts, especially at the trial level, rely on the plain statutory expressions by the General Assembly rather than seeking to project any unspoken purpose behind the definitions of what constitute a public body or a public function.¹⁸

The Supreme Court of Virginia affirmed the Circuit Court's finding by stating that:

Had the General Assembly intended the unreserved inclusion of non-profit foundations, that exist for the primary purpose of supporting public institutions of higher education, as public bodies under [FOIA], it could have so provided, but it has not. Policy determinations of this nature are peculiarly within the province of the General Assembly, not the judiciary.¹⁹

Thus, the General Assembly could have provided that campus police departments for private institutions of higher education be included along with private police departments under the definition of "public body" in § 2.2-3701 of the Code of Virginia. However, the General Assembly chose not to include campus police departments in the definition of "public body" under FOIA.

The rules of statutory construction and the guidance of the Supreme Court of Virginia provide that "when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language."²⁰ The Supreme Court of Virginia has also opined that "circuit courts are required to interpret statutes based upon 'what the statute says and not by what [the court] think[s] it should have saId.'"²¹ Furthermore, "courts may not 'add[] language to or delet[e] language from a statute' in the guise of interpreting that statute."²² Analysis would deduce that by invoking separate statutory structures, the legislature's intent is for private police departments and campus police departments to be deemed distinct, identifiable entities. Therefore, they should not be considered the same under Virginia law. Applying this reasoning further, the fact that private police departments are included in the definition of "public body" and that campus police departments are not indicates that campus police departments are not public bodies subject to FOIA.

Conclusion

Question 1. Is the URPD a public body obligated by FOIA to respond to requests for public records?

No, the URPD is not a public body obligated by FOIA to respond to requests for public records because it is the campus police department of a private institution of higher education established under the provisions of § 23.1-810 of the Code of Virginia.

Question 2. Did the URPD violate FOIA when it refused to respond to my request for its policy manual?

No, the URPD did not violate FOIA when it refused to respond to your request for its policy manual because the URPD is not a public body subject to the provisions of FOIA. However, the URPD is required by § 23.1-817 of the Code of Virginia to provide criminal incident information, including (i) the date, time, and general location of the alleged crime; (ii) a general description of injuries suffered or property damaged or stolen; and (iii) the name and address of any individual arrested as a result of felonies committed against persons or property or misdemeanors involving assault, battery, or moral turpitude reported to the campus police, that is open to inspection and copying by any citizen of the Commonwealth, currently registered student of the institution, or parent of a registered student during the regular office hours of the custodian of such information unless such disclosure is prohibited by law. Furthermore, § 23.1-817 of the Code of Virginia also provides that "[i]f the release of such information is likely to jeopardize an ongoing criminal investigation or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until such damage is no longer likely to occur from the release of such information."

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

¹Chapter 224 of the Acts of Assembly of 2015.
²Id.
³See Chapter 224 of the Acts of Assembly of 2015. The private police departments recognized by the Department of Criminal Justice Services at that time were the Aquia Harbor Police Department, the Babcock and Wilcox Police Department, the Bridgewater Airpark Police Department, the Carilion Police and Security Services Department, the Kings Dominion Park Police Department, the Kingsmill Police Department, the Lake Monticello Police Department, the Massanutten Police Department, and the Wintergreen Police Department.
⁴Id.
⁵Freedom of Information Advisory Opinion 07 (2024) (citing Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (Va. 2013) (citations, internal quotation marks, and alteration omitted)).
⁶Freedom of Information Advisory Opinions 09 (2024), 06 (2024) and 09 (2019) (citing Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted)).
⁷Id. (citing Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016))).
⁸Va. Code § 9.1-101.
⁹Id.
¹⁰Va. Code § 23.1-810.
¹¹See Va. Code § 23.1-811.
¹²See Va. Code §§ 9.1-101 and 23.1-815(C).
¹³Va. Code § 9.1-101 (under definition of "private police department").
¹⁴See Va. Code §§ 9.1-101, 23.1-810, and 23.1-812.
¹⁵See Va. Code § 23.1-812.
¹⁶See footnote 3.
¹⁷Transparent GMU v. George Mason Univ., 99 Va. Cir. 309, 314 (Cir. Ct. 2018).
¹⁸Id. at 317.
¹⁹Transparent GMU v. George Mason Univ., 298 Va. 222, 250, 835 S.E.2d 544, 558 (2019); See, e.g., Daily Press, LLC v. Office of Exec. Sec'y of Supreme Court, 293 Va. 551, 557, 800 S.E.2d 822 (2017) ("Public policy questions concerning where to draw the line with respect to VFOIA fall within the purview of the General Assembly.").
²⁰Freedom of Information Advisory Opinions 09 (2024), 06 (2024), and 09 (2019) (citing Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted)).
²¹Berry v. Bd. of Supervisors, 302 Va. 114, 133, 884 S.E.2d 515 (2023) (citing Commonwealth v. Amerson, 281 Va. 414, 421, 706 S.E.2d 879 (2011) (quoting Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 468-69, 698 S.E.2d 900 (2010)).
²²Id. at 133 (quoting Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706, 733 S.E.2d 250 (2012)) (citing BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467 (2007)).

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