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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-09-26
June
30, 2026
Timothy
Moore
Via Electronic Mail
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 August 4, 2025.
Dear
Mr. Moore:
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) and, specifically,
the practices of the Office of the Attorney General
(OAG) in responding to your requests for criminal
investigative records.
Background
On January 27, 2025, you submitted a request to OAG
for records regarding a specific individual in connection
with, among other things, healthcare fraud allegations,
including Medicare and Medicaid fraud. On January
28, 2025, OAG withheld the requested records by citing
subsection D of § 2.2-3706.1 of the Code of Virginia,
which you believed showed that the relevant exemption
pertained to investigations that were ongoing. However,
subsection D of § 2.2-3706.1 applies specifically
to criminal investigative files relating to proceedings
that are not ongoing, and provides in relevant part:
D. Criminal investigative files relating to a criminal
investigation or proceeding that is not ongoing
are excluded from the mandatory disclosure provisions
of this chapter, but may be disclosed by the custodian….
Based on the information you submitted to this office,
you made a follow-up request for the same category
of records on August 4, 2025. In response to this
second request, OAG withheld the records under a different
provision, subdivision B 1 of § 2.2-3706 of the
Code of Virginia, as “criminal investigative files.”
That provision provides the following:
B.
Discretionary releases. The following records are
excluded from the mandatory disclosure provisions
of this chapter, but may be disclosed by the custodian,
in his discretion, except where such disclosure
is prohibited by law:
1.
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 not required
to be disclosed in accordance with § 2.2-3706.1.
You
then sought the opinion of this office regarding four
questions, each of which is addressed in turn below.
Your
Questions:
1. Does the OAG’s shift from citing subsection D
of § 2.2-3706.1 to subdivision B 1 of §
2.2-3706 constitute an acknowledgment that the subject
investigation no longer meets the statutory definition
of “ongoing,” and did the OAG properly exercise
its discretionary authority in withholding the requested
records?
2.
What standards must agencies apply when exercising
discretion under subdivision B 1 of § 2.2-3706
and, in particular, (i) must public interest factors
be considered, (ii) is case-specific justification
required beyond a categorical exemption citation,
and (iii) is the length of an investigation or the
absence of charges a relevant factor?
3.
Must an agency exercising a discretionary exemption
provide specific justification for withholding records,
or may it rely solely on a general categorical assertion
of exemption?
4.
How do FOIA’s mandates for liberal interpretation
in favor of access and narrow construction of exemptions
apply to an agency’s discretionary invocation of
the criminal investigative files exemption?
Question
1: Legal Significance of the Exemption Change
You asked whether the OAG’s shift from citing subsection
D of § 2.2-3706.1 to subdivision B 1 of §
2.2-3706 constitutes an acknowledgment that the subject
investigation no longer meets the statutory definition
of “ongoing” and whether the OAG properly exercised
its discretionary authority in withholding the records.
As a threshold matter, the FOIA Advisory Council only
has the powers and duties provided in § 30-179
of the Code of Virginia. The Council does not have
any investigative or enforcement authority. Determinations
of fact, such as whether a particular course of conduct
constitutes a legal acknowledgment of a particular
circumstance, are generally not within the purview
of this office as only the courts have the authority
to act as triers of fact. With that limitation in
mind, we offer the following guidance.
Subsection
D of § 2.2-3706.1 applies, by its own terms,
to criminal investigative files relating to an investigation
or proceeding that is not ongoing. A public body’s
reliance on subsection D of § 2.2-3706.1 therefore
carries an inherent implication that the subject investigation
is no longer ongoing.1 The plain language of that provision
states, in full:
D.
Criminal investigative files relating to a criminal
investigation or proceeding that is not ongoing
are excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian,
in his discretion, except as provided in subsection
E; however, such records shall be disclosed, by
request, to the following persons, regardless of
whether any such person is a citizen of the Commonwealth….
Following this provision are five enumerated categories
of persons to whom disclosure is mandatory regardless
of citizenship:
(1)
The victim;
(2)
The victim’s immediate family members, if the victim
is deceased and the family member is not a person
of interest;
(3)
The parent or guardian of a minor victim who is not
a person of interest;
(4)
An attorney representing a petitioner in a writ of
habeas corpus or writ of actual innocence proceeding;
and
(5)
Certain attorneys or pro se litigants seeking inspection
for the purpose of a post-conviction or civil proceeding
upon providing a sworn declaration or affidavit.
Unless you fall within one of those five enumerated
categories, subsection D of § 2.2-3706.1 authorizes
a custodian to exercise discretion when determining
whether to release criminal investigative files relating
to an investigation that is no longer ongoing. Accordingly,
with respect to your first question, it appears that
the OAG exercised its statutorily granted discretion
in withholding the requested records when considering
the January and August responses. The custodian’s
reliance on subsection D of § 2.2-3706.1 does
imply that the investigation no longer meets the statutory
definition of “ongoing.” As this office is limited
to the facts presented, however, and without additional
information, we cannot opine whether your interpretation
of the OAG’s conduct in this regard is accurate.
Question 2: Standards for Exercising Discretionary
Exemptions
You asked what standards agencies must apply when
exercising discretion under subdivision B 1 of §
2.2-3706 and, specifically, whether (i) public interest
factors must be considered; (ii) case-specific justification
is required beyond a categorical exemption citation;
and (iii) whether the length of an investigation or
absence of charges is a relevant factor.
This
office has previously opined that a custodian’s choice
to withhold exempt records is itself an exercise of
discretion, just as the choice to disclose those same
records would be.2 Both choices constitute exercises
of the discretion granted under FOIA.
Accordingly,
it is appropriate for a public body, when supported
by a relevant statutory provision, to exercise its
discretionary authority without conducting a formal
balancing test, because no such balancing test is
contained within the provisions of FOIA. While your
second question identifies three potentially relevant
analytical factors, neither subdivision B 1 of §
2.2-3706 nor § 2.2-3706 more generally prescribes
a set of factors that public bodies must weigh before
utilizing a discretionary exemption. This office has
previously addressed this point directly in prior
advisory opinions. The following excerpt from Freedom
of Information Advisory Opinion 01 (2014) is instructive:
While we do appreciate the public interest represented
and the value of transparency in government, FOIA
itself contains no such balancing test for exemptions.
Instead, the General Assembly has set the default
rule that all public records are subject to mandatory
disclosure unless exempt or prohibited from release,
and then chosen by statute which records are so
exempt or prohibited from release. Once a record
is determined to be exempt, it does not have to
be disclosed, but it still may be disclosed in the
discretion of the custodian, unless some other law
prohibits its release. Assuming no such prohibition
applies, FOIA does not set forth any standards or
limitations guiding the use of discretion to disclose
exempt records, nor does it establish what might
constitute an abuse of that discretion.
Ultimately,
the factors you describe, including the length of
the investigation and the absence of formal charges,
might be things a custodian considers in deciding
whether to exercise discretion to release exempt records,
and may be relevant to broader questions of public
accountability, but there is no statutory requirement
to conduct any specific balancing test in deciding
whether to exercise discretion to release exempt records.
Question 3: Burden of Justification When
Withholding Records
You asked whether an agency exercising a discretionary
exemption must provide specific justification for
withholding records, or whether it may rely solely
on a general categorical assertion of exemption.
When withholding records, a custodian is charged by
subdivisions B 1 and 2 of § 2.2-3704 of the Code
of Virginia to respond as follows:
B. … Any public body that is subject to this chapter
and that is the custodian of the requested records
shall promptly, but in all cases within five working
days of receiving a request, provide the requested
records to the requester or make one of the following
responses in writing:
1. The requested records are being entirely withheld.
Such response shall identify with reasonable particularity
the volume and subject matter of withheld records,
and cite, as to each category of withheld records,
the specific Code section that authorizes the withholding
of the records.
2. The requested records are being provided in part
and are being withheld in part. Such response shall
identify with reasonable particularity the subject
matter of withheld portions, and cite, as to each
category of withheld records, the specific Code
section that authorizes the withholding of the records.
Both of these subdivisions require that a public body
cite any applicable exemption(s) "as to each
category of withheld records." [Emphasis
added.]3 The statutory language therefore answers your
question in the affirmative, that a public body may
cite exemptions categorically. In this specific instance,
the OAG confirmed that there were responsive records
and cited a single statutory exemption that covered
all of the responsive records. This conclusion is
also supported by prior opinions of this office, where
we opined, in the context of subdivision B 2 of §
2.2-3704, that “[W]e always encourage communication
between public bodies and requesters, FOIA does not
require further explanation when a public body asserts
an exemption beyond identifying the subject matter
of withheld portions and citing the specific Code
section that authorizes withholding."4
Note,
however, that even a response that invokes an exemption
by category alone, without citing the specific provision
of law that authorizes withholding, will not necessarily
entitle a requester to relief. This principle is consistent
with established precedent, primarily Lawrence
v. Jenkins, in which the Supreme Court of Virginia
held that certain technical shortcomings, such as
a custodian's failure to cite the correct statutory
exemption within the five-working-day period, did
not entitle the petitioner to a writ of mandamus because
even though the public body did not follow FOIA's
procedure, the records were still exempt.5
In Lawrence the court explained that the
petitioner ultimately received all the information
FOIA required and the custodian had properly exercised
his discretion to withhold portions of the records
from the outset.6 Hence, even if a response does not
strictly comply with the provisions of FOIA, if the
exemption does in fact apply to the records in question,
then the failure to follow FOIA's procedure would
be a technical rather than substantive violation of
FOIA following the holding in Lawrence.
Question 4: Application of FOIA’s Liberal
and Narrow Construction Principles
You asked how FOIA’s mandates for liberal interpretation
in favor of access and narrow construction of exemptions
apply to an agency’s discretionary use of the criminal
investigative files exemption.
The Supreme Court of Virginia has directly addressed
this question. As the Court observed in applying FOIA’s
construction rules, the Act “puts the interpretative
thumb on the scale in favor of disclosure,” and “[d]isclosure
exemptions must be ‘narrowly construed’ in favor of
disclosure.”7 The Court further recognized that “[w]hile
VFOIA expresses a clear legislative preference for
‘openness,’ it simultaneously mandates that certain
records be excluded from production.”8
This
language reflects the interpretive framework codified
in FOIA’s policy statement in subsection B of §
2.2-3700, which provides that “[t]he provisions of
this chapter shall be liberally construed to promote
an increased awareness by all persons of governmental
activities” and that “[a]ny exemption from public
access to records or meetings shall be narrowly construed.”
We have stated previously that “where there is a choice
between an interpretation of a FOIA provision that
favors disclosure and one that favors withholding,
this office must choose the interpretation that favors
disclosure. Where the statutory language is clear
and unambiguous, the plain meaning of the statute
controls.”9
This
office has previously explained that the narrow construction
requirement is not displaced simply because an exemption
is characterized as discretionary. The Supreme Court
of Virginia confirmed this principle in Gloss
v. Wheeler, which reaffirmed that the statutory
preference for open government applies to the interpretation
of all FOIA provisions, including exemptions that
afford custodians discretionary authority.10
Applied
to the criminal investigative files exemption, these
principles mean that a public body must construe the
scope of subdivision B 1 of § 2.2-3706 and subsection
D of § 2.2-3706.1 narrowly, and that any ambiguity
as to whether a particular record falls within the
exemption should be resolved in favor of disclosure.
While FOIA does not require a public body to conduct
a public interest balancing test before invoking a
discretionary exemption, the Act’s inherent preference
for openness provides an important backdrop for understanding
the spirit in which custodians are expected to exercise
their discretionary authority.
Conclusion
To summarize this office’s responses to your four
questions: (1) The OAG’s reliance on subsection D
of § 2.2-3706.1 does imply that the subject investigation
may no longer meet the statutory definition of “ongoing,”;
(2) FOIA does not require a custodian to conduct a
public interest balancing test or consider specific
factors, such as the length of the investigation or
absence of charges, before exercising its discretion
to withhold records under subdivision B 1 of §
2.2-3706; (3) a custodian must satisfy the requirements
of subdivisions B 1 and 2 of § 2.2-3704 by identifying
withheld records with reasonable particularity and
citing the specific Code section authorizing withholding,
but need not provide any further justification for
the withholding; and (4) FOIA’s liberal and narrow
construction principles require that the criminal
investigative files exemption be construed narrowly
in favor of disclosure, and that any ambiguity be
resolved in favor of access.
This office’s authority is limited to providing guidance
and education on the requirements of FOIA and does
not include the authority to enforce or compel compliance
with FOIA. Enforcement of FOIA and determinations
of fact remain with the courts of Virginia pursuant
to § 2.2-3713 of the Code of Virginia.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Matteo
Murrelle
Staff Attorney
Alan
Gernhardt, Esq.
Executive Director
1Note
that subsection C of § 2.2-3706.1 provides a
corresponding exemption for criminal investigative
files that are ongoing ("Criminal investigative
files relating to an ongoing criminal investigation
or proceeding are excluded from the mandatory disclosure
provisions of this chapter, but may be disclosed by
the custodian, in his discretion, except as provided
in subsection E or where such disclosure is prohibited
by law.").
2Freedom of Information Advisory Opinion
09 (2008).
3Va. Code § 2.2-3704
4Freedom of Information Advisory Opinion
09 (2019).
5See Lawrence v. Jenkins, 258
Va. 598 (1999).
6Id.
7Virginia Dep’t of Corrections v. Surovell,
290 Va. 255, 263 (2015) (quoting Fitzgerald v.
Loudoun County Sheriff’s Office, 289 Va. 499,
505 (2015)).
8Id.
9Freedom of Information Advisory Opinion
03 (2025).
10Gloss v. Wheeler, 301 Va. 258,
279, (2023) (citing Fitzgerald v. Loudoun Cnty. Sheriff’s
Off., 289 Va. 499, 505, (2015)).
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