2-8-2013 – Virginia Supreme Court affirms in part and reverses in part the FOIA ruling of the Circuit Court of the City of Williamsburg and James City County in Harmon v Ewing.

On February 8, 2013, the Virginia Supreme Court issued an order arising from the appeal by the government of the order of the Circuit Court of the City of Williamsburg and James City County directing the government to produce documents requested under Virginia’s Freedom of Information Act (FOIA).

Attorneys for Ewing stated that they were certainly pleased that the Court affirmed part of the decision, but expressed disappointment that not all of the decision was affirmed.

The court has long held that “If the statute’s text is “clear and unambiguous, courts may not interpret them in a way that amounts to a holding that the legislature did not mean what it actually has expressed. In other words, courts are bound by the plain meaning of clear statutory language.”  Campbell v. Harmon, 271 Va. 590, 598 (2006).

Ewing’s attorney Andrew Bodoh, stated “We believe that there is good cause to request a rehearing since it appears that the Court’s order overlooks crucial language in Virginia FOIA.”

By its order, the Virginia Supreme Court has concluded that the § 2.2-3705.1(1) provision stating “The following records [“personnel records containing information concerning identifiable individuals”] are  excluded from the provisions of this chapter” is not in conflict with § 2.2-3706(G) provisions stating “Records kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this chapter.”     Putting it more simply, the Court has concluded that it is not a conflict for the legislature to state that the records requested by Ewing are excluded from the provisions of this chapter and are at the same time subject to the provisions of this chapter.    The legislature, cognizant of the conflict between a general exclusion for most state employee personnel records, specifically carved out and put back into the reach of FOIA parts of the personnel records for law-enforcement, those public servants having such direct and potentially destructive contact with Virginia’s citizens.  If a conflict exists, said the legislature in subsection (I), then section 2.2-3706(G) was to control, requiring production with the safeguards legislated, while exempting “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 such information would jeopardize the safety or privacy of any person.”

Ewing’s attorney Tom Roberts stated, “This opinion has the unfortunate effect of creating a separate dialect for the judiciary than that of the common man where people understand that a thing cannot be both “excluded” from and “subject” to the provisions of this chapter.”

Attorney Andrew Bodoh added, “The clear language of the statute not only creates a conflict, but tells the courts how to resolve the conflict. We anticipate that Mr. Ewing will ask the Court to reconsider.  We are also confident that the General Assembly will be reviewing this matter as well.  If the law is to be changed, it should be the General Assembly elected by the citizens of Virginia rather than the Court’s function to rewrite the law.  The Court’s order appears to nullify parts of the legislation without a Constitutional basis for doing so.”

The General Assembly has very carefully addressed what police records are open to the public, and this order appears to nullify parts of that legislation.

The Court’s order states that no conflict exists, because Code § 2.2-3706(G) requires that applicable records shall be subject “to the provisions of this chapter” emphasizing the term “this chapter” and explaining that therefore the legislative direction to apply § 2.2-3706(I) is inapplicable.  By avoiding the mandatory resolution provisions of subsection (I), the court concludes that the personnel records referenced in subsection (G) are, like all public personnel records, subject to the protections of Code § 2.2-3705.1(1) that excludes personnel records of all other government employees from mandatory disclosure under FOIA.   Contrary to popular misconception, even excluded personnel records may be disclosed, since even § 2.2-3705.1 states that while excluded from the provision of this chapter, the records “may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.”

§ 2.2-3706(F)(11) states

F. The following records are excluded from the provisions of this chapter, but may be disclosed by the custodian, in his discretion, except where such disclosure is prohibited by law:  11. Records of (i) background investigations of applicants for law-enforcement agency employment, (ii) administrative investigations relating to allegations of wrongdoing by employees of a law-enforcement agency, and (iii) other administrative investigations conducted by law-enforcement agencies that are made confidential by law.

G. Records kept by law-enforcement agencies as required by § 15.2-1722 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 such information would jeopardize the safety or privacy of any person.

§ 2.2-3705.1 states in pertinent part as follows:

The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of any personnel record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such records for inspection and copying.

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