VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 8th day of
February, 2013.
Emmett H. Harmon, Chief of the James
City County Police Department, et al., Appellants,
against Record No. 121118
Circuit Court No. CL2012-50
Adam L. Ewing, Appellee.
Upon an appeal from a judgment rendered by the Circuit Court
of the City of Williamsburg and James City County.
Upon consideration of the record, briefs, and argument of
counsel, we are of the opinion that there is reversible error in
the judgment of the circuit court. For the reasons explained
below, the judgment is affirmed in part, reversed in part, and the
case is remanded.
I. Background
This petition concerns a request submitted by Adam L. Ewing to
the James City County Police Department (Department) pursuant to
the Virginia Freedom of Information Act, Code § 2.2-3700 et seq.
(VFOIA), regarding information and records relating to Ewing's
arresting officer, Ryan S. Shelton.
On December 20, 2011, Ewing's counsel submitted a VFOIA
request to the Department seeking: all criminal incident
information from 2011 incidents in which Ryan Shelton was the
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investigating officer or was otherwise involved; the names of
individuals, other than juveniles, arrested or charged by Shelton
or by other officers based on information supplied by Shelton in
2011; and records concerning Shelton kept pursuant to Code § 15.2-
1722, including any personnel records or conduct investigation
records.
On December 21, the Department responded by releasing the
criminal incident report for Ewing only, noting that there were no
records relating to the second item because this request pertained
to information not consolidated into a record, and stating that any
records regarding conduct investigation would be in Shelton's
personnel file and would thus be withheld pursuant to Code § 2.2-
3705.1(1). On January 4, 2012, the Department in an email
clarified that it "unintentionally misread" the first portion of
the request when it provided only records relating to Ewing's
arrest, and agreed to provide approximately 47 criminal incident
reports involving Officer Shelton from 2011. The Department
indicated that its position on the personnel documents and identity
information remained unchanged.
Ewing then petitioned for a writ of mandamus requiring the
production of all of the requested documents. The circuit court
found in favor of Ewing and ordered the Department to produce the
identities of individuals arrested and charged by or on the
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information of Shelton and to produce all records concerning
Shelton kept pursuant to Code § 15.2-1722, including personnel
records. The circuit court further awarded costs and fees in the
amount of $5,206. The Department now appeals.
II. Discussion
A. Personnel Documents
The Department declined Ewing's request to produce personnel
records or conduct investigative records, stating that all such
records were contained in personnel files and citing Code § 2.2-
3705.1(1). Code § 2.2-3705.1(1) exempts from VFOIA disclosure any
"[p]ersonnel records containing information concerning identifiable
individuals," except for production to the individual who is the
subject thereof or in the case of waiver by that individual.
Ewing claims that, under Code § 2.2-3706 (entitled "Disclosure
of Criminal Records"), subsections (G) and (I) combine to exempt
personnel files of law enforcement officers from this provision.
These subsections read as follows:
G. Records kept by law-enforcement agencies as required
by § 15.2-1722[ 1] shall be subject to the provisions of
this chapter except that those portions of noncriminal
incident or other investigative reports or materials that
contain identifying information of a personal, medical or
financial nature may be withheld where the release of
1
Code § 15.2-1722 provides for, among other things, the
keeping of personnel records by law enforcement agencies.
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such information would jeopardize the safety or privacy
of any person.
. . . .
I. In the event of conflict between this section as it
relates to requests made under this section and other
provisions of law, this section shall control.
Ewing argues that Code § 2.2-3706(G) is in conflict with Code
§ 2.2-3705.1 (entitled "Exclusions to application of chapter;
exclusions of general application to public bodies").
Specifically, he argues that the personnel record exemption of Code
§ 2.2-3705.1(1) conflicts with Code § 2.2-3706(G), which requires
that all applicable records, including law enforcement personnel
records, are subject to VFOIA. This conflict, Ewing concludes,
invokes the "trumping" provision of subsection (I) of Code § 2.2-
3706, rendering personnel records of law enforcement officers
available to the public under VFOIA.
No such conflict exists, however. Code § 2.2-3706(G) requires
that applicable records shall be subject "to the provisions of this
chapter." (Emphasis added.) The provisions of "this chapter,"
that is, all of VFOIA, include not only the disclosure provisions
of VFOIA but also the exclusion provisions of the chapter set forth
in Code § 2.2-3705.1. In the absence of a conflict, there is no
reason to involve Code § 2.2-3706(I) in the analysis. Personnel
records covered by subsection (G) are, like all public personnel
records, subject to the protections of Code § 2.2-3705.1(1). The
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request for personnel records and for information found therein was
thus appropriately refused by the Department, and this Court
reverses that portion of the order requiring their disclosure.
B. Information as to Identities of Persons
Ewing also requested the identities of all individuals, other
than juveniles, arrested or charged by Officer Shelton or by
another officer based on information supplied by him. The
Department denied his request, and the circuit court ordered
production. The Department appeals, arguing that this is a request
for "information," not documents, and therefore exempt from VFOIA.
Code § 2.2-3706(C) provides 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." As the
plain language of the statute compels the production of
"information" as to the "identit[ies]" of individuals, the
Department's position that all information requests are per se
exempt from VFOIA is untenable.
The remaining question for the Court is whether the
"information" requested is subject to disclosure under Code § 2.2-
3706. The statute does not indicate any impediment to using the
name of the arresting officer paired with a reasonable timeframe as
the vehicle for a request under subsection (C). The statute thus
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requires the production of Ewing's requested information as to
identities of individuals arrested by Officer Shelton. The
Department may furnish copies of arrest records or produce the
information via another appropriate format. 2
Under a plain reading of this statute as a whole, however, it
is clear that the latter portion of Ewing's request – concerning
identities of individuals arrested based on Officer Shelton's
information or observations – seeks information that is exempt from
disclosure. Subsection (A) of Code § 2.2-3706 specifically
distinguishes "criminal incident information," subject to VFOIA
under the provisions of this section, from "criminal investigative
files," which are exempt under subsections (D) and (F)(1) of the
same statute. Subsections (D) and (F) specifically exempt
information pertaining to witnesses, criminal investigative
techniques, or criminal investigative files generally. Arrests
occurring merely on Shelton's "information" or with him serving as
a witness, for which Shelton has not signed or been otherwise
designated as the arresting officer, fall into the category of
criminal investigative files and are exempt under these provisions.
2
See Code § 2.2-3704(D) ("Subject to the provisions of
subsection G, no public body shall be required to create a new
record if the record does not already exist. However, a public
body may abstract or summarize information under such terms and
conditions as agreed between the requester and the public body.").
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The Court therefore orders the production, via either copies
of original documents or other acceptable format, of identities of
individuals arrested by Officer Shelton but not the identities of
individuals for which he was not the arresting officer, regardless
of information supplied by him or his presence as a witness
relating to those arrests. As it is unclear from the record of
this case whether arrest warrants signed by Shelton are duplicative
of the Department's previous production of criminal incident
reports responsive to Ewing's first request, the Court orders the
circuit court to ensure production of any non-redundant identity
information in accordance with this order.
C. Attorneys' Fees
Finally, the Department challenges the award of attorneys'
fees in this case under Code § 2.2-3713(D), which states:
The petition shall allege with reasonable specificity the
circumstances of the denial of the rights and privileges
conferred by this chapter. A single instance of denial of
the rights and privileges conferred by this chapter shall
be sufficient to invoke the remedies granted herein. If
the court finds the denial to be in violation of the
provisions of this chapter, the petitioner shall be
entitled to recover reasonable costs, including costs and
reasonable fees for expert witnesses, and attorneys' fees
from the public body if the petitioner substantially
prevails on the merits of the case, unless special
circumstances would make an award unjust. In making this
determination, a court may consider, among other things,
the reliance of a public body on an opinion of the
Attorney General or a decision of a court that
substantially supports the public body's position.
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As the determination of "special circumstances" lies in
the sound discretion of the trial court, this issue is remanded
in light of the several holdings in favor of the Department on
this appeal. The circuit court must reconsider whether to
award attorneys' fees and, if so, the appropriate quantum.
III. Conclusion
The judgment is accordingly affirmed in part, reversed in
part, and the case is remanded. This order shall be published
in the Virginia Reports and shall be certified to the said
circuit court.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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