Connell v. Kersey

Present: All the Justices

JAMES G. CONNELL, III
OPINION BY
v. Record No. 001729 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2001
ANDREW KERSEY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge

In this appeal, we consider whether the trial court

properly sustained a demurrer to a petition for writ of

mandamus. The petitioner had sought to compel a Commonwealth’s

Attorney to produce records related to an ongoing criminal

investigation or prosecution, asserting that the records were

subject to disclosure under The Virginia Freedom of Information

Act, Code § 2.1-340, et seq. (FOIA).

BACKGROUND

The parties do not dispute the principal facts. James G.

Connell, III, a resident of Virginia and an attorney-at-law

serving as an Assistant Public Defender in Fairfax County,

represents Ahmed Jamal Shireh in a felony criminal case being

prosecuted by Fairfax County Assistant Commonwealth’s Attorney

Andrew Kersey. Connell became aware that Kersey was in

possession of one or more police reports containing criminal

incident information regarding Shireh’s alleged crime.
 On April 17, 2000, Connell requested in a letter that

Kersey “send [Connell] any and all personnel, arrest,

investigative, reportable incidents, and noncriminal incident

records, as defined by Code § 15.2-1722, as well as any other

records containing criminal incident information, as defined in

Code § 2.1-342.2” related to Shireh’s alleged crime. (Emphasis

added). Copies of the letter were sent by certified mail and

hand delivered to Kersey.

Upon receipt of Connell’s letter, Kersey telephoned Connell

and advised him that, in Kersey’s opinion, the records Connell

sought were not subject to disclosure during an ongoing criminal

investigation or prosecution. According to Kersey, Connell

conceded during the telephone conversation that he was unaware

of any legal authority that supported his interpretation of the

FOIA, but insisted that Code § 2.1-342.2 nonetheless required

disclosure of the requested records. Kersey disagreed and

declined to provide the records.

On April 28, 2000, Connell, through retained counsel,

advised Kersey that, in Connell’s opinion, Kersey’s failure to

“respond[] as required by the [FOIA]” was a violation of the

FOIA, and again requested that Kersey forward “records relating

to the case of Commonwealth v. Ahmed Shireh” to Connell in order

“to dispose of this matter without litigation.” (Emphasis

added). Connell indicated that if Kersey failed to produce the

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requested records, Connell was prepared to file a petition for

writ of mandamus to have the records produced and that he would

seek “civil penalties against [Kersey] in [his] individual

capacity.”

On May 2, 2000, Kersey wrote a letter to Connell’s counsel

again asserting that the records sought were not subject to

disclosure under express exemptions within the FOIA. Kersey

further noted that Connell’s “threat to seek civil penalties

against [Kersey] is unfortunate and inappropriate.” Kersey

indicated his belief that the proposed petition for writ of

mandamus was “utterly meritless and unwarranted by law” and

cautioned that he might seek sanctions against Connell’s counsel

if he chose to proceed with the threatened litigation.

On May 5, 2000, Connell’s counsel responded to Kersey’s May

2, 2000 letter by again disputing Kersey’s interpretation of the

FOIA. Connell’s counsel contended that the FOIA required Kersey

to produce “criminal incident information,” as requested by

Connell. (Emphasis added). Connell’s counsel further contended

in this letter that Kersey’s “continued refusal to provide the

requested information . . . only aggravates your violation of

the [FOIA’s] requirements and strengthens our claim for civil

penalties.”

On May 8, 2000, Kersey replied to the May 5, 2000 letter,

indicating that he believed the request for “ ‘criminal incident

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information’ . . . represents a change from Mr. Connell’s

original letter to me and both your [April 28, 2000] letter and

proposed Petition for Writ of Mandamus which demand [records]

that contain ‘criminal incident information.’ ” Kersey conceded

that Connell was entitled to request “criminal incident

information,” but not to receive the original records from which

the information was compiled. In the letter, Kersey provided a

summary of the criminal incident information related to the

arrest and prosecution of Shireh.

On May 9, 2000, Connell filed a petition for writ of

mandamus seeking an order directing Kersey to produce “all

documents” within his control containing criminal incident

information relating to the arrest and prosecution of Shireh

that were subject to disclosure pursuant to Code § 2.1-342.2.

Connell also sought attorney’s fees and costs and requested that

the trial court impose “a civil penalty of not less than $100

nor more than $1,000” against Kersey. In a supporting

memorandum, Connell asserted that the FOIA required the

Commonwealth’s Attorney to produce copies of the original

records containing criminal incident information, and not merely

a summary of these records. Connell further asserted that the

requested sanction was appropriate under Code § 2.1-346.1, which

provides for civil penalties “against members of public bodies”

for willful and knowing violations of the FOIA. Connell

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contended that among other evidence of Kersey’s willful and

knowing violation of the FOIA was his failure to respond to

Connell’s original request within the time and under the

procedures required by Code § 2.1-342.

On May 17, 2000, Kersey filed a demurrer to the petition

for writ of mandamus with a supporting brief. 1 Kersey again

asserted that the records originally requested by Connell were

exempt from disclosure under Code § 2.1-342.2, and that he had

supplied criminal incident information sufficient to satisfy the

requirements of that code section. With respect to the

allegations of his failure to comply with Code § 2.1-342 and the

request for a civil penalty, Kersey noted that the provisions of

the FOIA relied upon by Connell related to requests made to

“public bodies.” Kersey asserted that the Commonwealth’s

Attorney was not a member of a “public body” subject to the

provisions of the FOIA cited by Connell. Kersey also filed an

answer and grounds of defense to the petition for writ of

mandamus.

1
Kersey also filed a plea in bar asserting that Connell’s
request was made on behalf of Shireh, who was incarcerated in
the Fairfax County Adult Detention Center. Kersey contended
that Code § 2.1-342.01(C) barred incarcerated persons from
exercising the rights afforded by the FOIA. The trial court
overruled the plea in bar, and Kersey has not assigned cross-
error to that action. Accordingly, we express no opinion on
this issue.
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 On May 19, 2000, the trial court heard argument from the

parties on Kersey’s demurrer. During that hearing, and in a

responding brief filed that same day, Connell contended that the

Commonwealth’s Attorney, “whose office operations are wholly

supported by public funds,” is a “public body” as defined in

Code § 2.1-341, and that Kersey, as an Assistant Commonwealth’s

Attorney, is a member of that public body. He further contended

that Kersey’s failure to comply with the procedures of Code

§ 2.1-342 constituted a waiver of any exemptions within the

statute, that the exemptions asserted by Kersey were in any case

not applicable to the records he had requested, and that the

disclosure of criminal incident information in summary form was

insufficient to satisfy the requirements of Code § 2.1-342.2.

Citing Code § 2.1-342(D), Connell contended that the summary

information provided by Kersey constituted a “new record” that

could not be substituted for existing records unless Connell

agreed to accept the summary.

In a letter opinion dated May 23, 2000, the trial court

first ruled that Connell was entitled to request “criminal

incident information” pursuant to Code § 2.1-342.2. The trial

court further ruled that, as defined by the statute, “criminal

incident information . . . is not synonymous with a ‘public

record’ as defined in Code § 2.1-341.” Thus, the trial court

concluded that Kersey was not required to obtain Connell’s

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agreement before supplying a summary, rather than original

records, in response to a request under Code § 2.1-342.2.

The trial court further ruled that the Commonwealth’s

Attorney’s office was not a public body as defined by the FOIA.

Accordingly, the trial court concluded that the procedural

provisions of Code § 2.1-342 did not apply to Connell’s request,

nor was Kersey subject to the penalty provisions of Code § 2.1-

346.1.

Based upon these rulings, the trial court ruled that Kersey

had complied with the requirements of Code § 2.1-342.2 by

supplying Connell with criminal incident information in summary

form within a reasonable time. On July 10, 2000, the trial

court entered an order incorporating by reference the reasoning

of its letter opinion and sustaining Kersey’s demurrer to

Connell’s petition for writ of mandamus. By an order dated

October 31, 2000, we awarded Connell this appeal.

DISCUSSION

Connell assigns error to the trial court’s determination

that the Commonwealth’s Attorney is not a “public body” within

the meaning of the FOIA and, thus, is not subject to the

requirements of Code § 2.1-342. Connell further assigns error

to the trial court’s ruling that Code § 2.1-342.2 permits the

Commonwealth’s Attorney to provide “criminal incident

information” in summary form rather than through the production

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of the original records containing that information. We will

address these issues seriatim.

The policy underlying the FOIA and its rules of

construction are set forth in Code § 2.1-340.1:

By enacting this chapter the General Assembly
ensures the people of this Commonwealth ready access
to records in the custody of public officials and free
entry to meetings of public bodies wherein the
business of the people is being conducted.

. . . .

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 exception or exemption from applicability shall be
narrowly construed in order that no thing which should
be public may be hidden from any person.

. . . .

All public bodies and public officials shall make
reasonable efforts to reach an agreement with a
requester concerning the production of the records
requested.

In considering the application of the FOIA in various

circumstances, we have not heretofore been called upon to

determine whether constitutional officers, such as a

Commonwealth’s Attorney, are “public bodies” within the meaning

of the FOIA. See, e.g., Tull v. Brown, 255 Va. 177, 181, 494

S.E.2d 855, 857 (1998) (sheriff’s contention that his office was

not a “public body” was rendered moot by his stipulation that he

was a “public official”). Contrary to Connell’s contention made

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on brief and during oral argument of this appeal, Tull does not

stand for the principle that public officials, such as

constitutional officers, are “public bodies” for purposes of

applying the FOIA.

In addition to any “legislative body” and various specified

governmental entities, Code § 2.1-341 defines a “Public body” as

“any authority . . . or agency of the Commonwealth or of any

political subdivision of the Commonwealth . . . supported wholly

or principally by public funds.” Connell contends that a

Commonwealth’s Attorney, whose office is clearly supported by

public funds, is both an “authority” and an “agency” of the

Commonwealth and of the locality in which he or she is elected.

We disagree.

As used in the FOIA, the terms “authority” and “agency”

clearly refer to entities to which responsibility to conduct the

business of the people is delegated by legislative or executive

action. By contrast, a Commonwealth’s Attorney derives his or

her authority from the Constitution. Va. Const. art. VII, § 4.

A Commonwealth’s Attorney, like a sheriff or other

constitutional officer, is undoubtedly a public official, Tull,

255 Va. at 183, 494 S.E.2d 858, but the FOIA distinguishes

between “public officials” and “public bodies” in several

instances. Indeed, Code § 2.1-340.1 refers to “public body or

public official,” clearly indicating that the terms are not

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synonymous. Essentially, a public body conducts “meetings”

involving the business of the public, whereas a public official

may or may not conduct such public meetings. See, e.g., Code

§ 2.1-342.01; Code § 2.1-343. A Commonwealth’s Attorney, in the

prosecution of a criminal offense, is not conducting a public

meeting; it is the trial related to that offense that is open to

the public.

Moreover, Code § 2.1-342.2(A) includes an express provision

that the term “Law-enforcement official,” as used in that code

section, “includes the attorneys for the Commonwealth.” If the

legislature had intended for Commonwealth’s Attorneys, and their

offices, to be treated as public bodies under the general

definitions in Code § 2.1-341, this express inclusion of

Commonwealth’s Attorneys in Code § 2.1-342.2(A) would have been

unnecessary.

Accordingly, we hold that the trial court did not err in

concluding that a Commonwealth’s Attorney is not a “public body”

within the meaning of the FOIA. 2 Thus, Connell’s request for

2
We permitted The Reporters Committee for Freedom of the
Press and the Virginia Coalition for Open Government to file a
brief as amici curiae in support of Connell. On brief, the
amici assert that their “interest here is in preserving public
access to government documents . . . [which] permits the public
to learn how their tax dollars are spent, to benefit from
information in government custody, and to hold government
officials accountable for their work.” We share the concern
expressed by the amici, and note that, contrary to the view
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criminal incident information pursuant to Code § 2.1-342.2 was

not subject to the procedures and time limits prescribed by Code

§ 2.1-342, which by its express terms relates only to requests

made under the FOIA to “public bodies.”

We turn now to the remaining issue whether Code § 2.1-342.2

permits the Commonwealth’s Attorney to provide criminal incident

information to the requester in summary form rather than to

provide the original records containing that information.

Connell contends that because he specifically relied upon both

Code § 2.1-342.2(B) and Code § 2.1-342.2(G) in making his

request, he was entitled to the original records and not merely

the summary of these records that he received from Kersey. We

disagree.

Code § 2.1-342.2(A) defines “Criminal incident information”

to mean “a general description of the criminal activity

reported, the date and general location the alleged crime was

committed, the identity of the investigating officer, and a

stated in their brief, the trial court did not rule that
constitutional officers and other public officials were wholly
exempt from the provisions of the FOIA. The trial court’s
ruling was limited to the application of the FOIA to
Commonwealth’s Attorneys under the circumstances of this case.
Similarly, our holding should not be interpreted as placing any
restriction on the application of the FOIA to public officials
and their offices beyond the narrow focus of this opinion as it
relates to FOIA requests made to a Commonwealth’s Attorney for
records related to ongoing criminal investigations or
prosecutions.
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general description of any injuries suffered or property damaged

or stolen.” (Emphasis added). In addition, as previously noted

this statute provides that the term “Law-enforcement official”

includes a Commonwealth’s Attorney. Subsection (B) provides

that law-enforcement officials, such as the Commonwealth’s

Attorney, “shall make available upon request criminal incident

information relating to felony offenses” subject to the

limitation that this information may be withheld where its

release is likely to jeopardize or hamper certain legitimate

interests regarding the ongoing investigation or prosecution of

a particular case. The following subsections of Code § 2.1-

342.2 address more specific data, information, or reports and,

in some instances, mandate the release of certain information,

prohibit the release of other information, and make the release

of still other information discretionary. See Code § 2.1-

342.2(C)-(F).

Subsection (G) provides that “[r]ecords kept by law-

enforcement agencies as required by § 15.2-1722 shall be subject

to the provisions” of the FOIA with certain specified exceptions

not pertinent to our present analysis. Code § 15.2-1722

requires “the sheriff or chief of police of every locality” to

maintain certain records “necessary for the efficient operation

of a law-enforcement agency.” The statute makes the failure of

a sheriff or chief of police to maintain these records a

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misdemeanor offense and places the duty to enforce this code

section on “the attorney for the Commonwealth.”

Significantly, both subsection (G) of Code § 2.1-342.2 and

Code § 15.2-1722 specifically refer to law-enforcement

“agencies” and not law-enforcement “official[s],” the term found

in Code § 2.1-342.2(A). Because the General Assembly

specifically included a Commonwealth’s Attorney within the

definition of law-enforcement official, we are of opinion that

it did not intend to include a Commonwealth’s Attorney within

the provisions of subsection (G). In this context, there is no

merit to Connell’s generalized assertion that a Commonwealth’s

Attorney comes within the term “law-enforcement agencies”

because he or she is an agent of the Commonwealth for purposes

of a request for information under the FOIA. Thus, Code § 2.1-

342.2(B) controls our analysis, and we are of opinion that the

disclosure of a summary of the original records is consistent

with the requirement that the Commonwealth’s Attorney provide

the requester with a general description of the criminal

activity reported therein including the date and general

location the alleged crime was committed, the identity of the

investigating officer, and a general description of any injuries

suffered or property damaged or stolen.

Accordingly, we hold that Code § 2.1-342.2 does not require

a Commonwealth’s Attorney’s office or other law enforcement

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official to release actual records relating to a criminal

incident, but only to provide a summary of the information

available from the specified records subject to any mandatory or

discretionary exemptions provided for in the statute. Thus, the

trial court did not err in ruling that Kersey’s provision of

summary criminal incident information within a reasonable amount

of time satisfied the requirements of the FOIA with respect to

Connell’s request.

CONCLUSION

For these reasons, we hold that the trial court did not err

in sustaining Kersey’s demurrer to Connell’s petition for writ

of mandamus. Accordingly, the judgment of the trial court will

be affirmed.

Affirmed.

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