Fitzgerald v. Loudoun County Sheriff's Office

• Court: Supreme Court of Virginia
• Decided: April 16, 2015
• Docket: 141238
• Status: Published

Opinion

PRESENT: All the Justices

BENJAMIN B. FITZGERALD OPINION BY v. Record No. 141238 JUSTICE D. ARTHUR KELSEY April 16, 2015 LOUDOUN COUNTY SHERIFF’S OFFICE

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY J. Howe Brown, Judge

On appeal, Benjamin B. Fitzgerald contends that the

circuit court erred in denying his request under the Virginia

Freedom of Information Act (“FOIA”), Code § 2.2-3700 et seq.,

to obtain a copy of a suicide note contained in a criminal

investigative file maintained by the Loudoun County Sheriff's

Office. Finding no such error, we affirm.

I.

In October 2007, a neighbor found Charles D. Riechers, a

senior United States Air Force official, dead at his Loudoun

County home. Riechers was sitting in his vehicle in a closed

garage. A key was in the ignition, in the “on” position, but

the vehicle was not running. A hose appeared to connect the

vehicle's exhaust pipe to a rear passenger window.

Firefighters from the Loudoun County Fire and Rescue

Department and deputies from the Loudoun County Sheriff’s

Office responded to the neighbor’s 911 call. The deputies

immediately secured the area with a yellow crime scene tape and

started a crime scene access log to record their observations,

summarize their interviews with witnesses, and inventory their collection of physical evidence. They also conducted a

security sweep of the home. The deputies then turned the

incident over to the Criminal Investigations Division of the

Sheriff’s Office.

A crime scene investigator managed the initial

investigation and ordered that the decedent be taken to the

morgue for an autopsy. A detective in the Sheriff’s Criminal

Investigations Division coordinated the search of the residence

after obtaining consent from the decedent’s wife. In the home,

investigators discovered various evidentiary clues suggesting

that suicide, rather than homicide, could be the cause of

death. Among the items of evidence collected was what appeared

to be a suicide note addressed to the decedent’s supervisor at

the Pentagon.

The detective continued to investigate evidentiary leads

and coordinated his investigation with the United States Air

Force Office of Special Investigations. The detective also

reviewed the coroner’s autopsy report, which concluded that the

decedent did not die from any apparent bodily trauma. After

receiving the medical examiner’s report, the detective filed

his final report concluding: “This case is now closed, no

further investigation is required at this time.” The case file

was placed among the closed cases of the Criminal

Investigations Division.

2 In February 2014, Fitzgerald sent a FOIA request to the

Sheriff’s Office seeking all documents related to the “non-

criminal incident report into the suicide of Charles D.

Riechers” in October 2007. The Custodian of Records for the

Sheriff’s Office responded by noting that the records sought

were considered to be part of a criminal investigative file.

The custodian referred Fitzgerald to Code § 2.2-3706(A)(2)(a)

and noted that the Sheriff’s Office would not release the file

absent a court order.

The Sheriff’s Office later provided to Fitzgerald various

documents from the criminal investigative file, but withheld

the suicide note written by the decedent to his supervisor at

the Pentagon. Fitzgerald filed a petition in general district

court seeking a mandamus order requiring the production of the

withheld suicide note. The general district court denied the

petition, as did the circuit court on a de novo appeal.

The circuit court made a factual finding that the

requested document was obtained during a criminal

investigation. That the investigation did not lead to a

criminal prosecution, the court reasoned, did not change the

character of the investigative file from criminal to non-

criminal. As the court explained:

Here, they open[ed] a criminal file and then determined that it was a suicide so you want to go back and in retrospect say, well, that wasn’t a criminal file. It was a criminal file

3 by the definition in the Code and if we start saying that we go by what happens later, then I think we open a door that isn’t opened by the statute and we create some danger to the community. So I deny the request.

The circuit court entered a final order adopting this

reasoning. We granted Fitzgerald’s petition for appeal to

determine if the circuit court’s reasoning is consistent with

the provisions of the FOIA.

II.

On appeal, Fitzgerald contends that the circuit court

misapplied FOIA principles. On brief, he requests that we

reverse and remand with instructions to the circuit court to

order the Sheriff’s Office “to disclose Mr. Riechers’ letter to

his business supervisor” at the Pentagon. 1

A. Standards of Appellate Review

Our analysis begins, as always, by framing the issues

before us within the context of the governing standard of

appellate review. “Under well-established principles, an issue

of statutory interpretation is a pure question of law which we

review de novo.” Conyers v. Martial Arts World of Richmond,

Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). Our de novo

review takes into account any informative views on the legal

1 During oral argument on appeal, Fitzgerald’s counsel confirmed that the only document he still seeks is this suicide note. See Oral Argument Audio at 1:08 to 1:36.

4 meaning of statutory terms offered by those authorized by law

to provide advisory opinions. 2 Even so, in the end, we alone

shoulder the duty of interpreting statutes because “pure

statutory interpretation is the prerogative of the judiciary.”

Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468

S.E.2d 905, 908 (1996). This axiom stems from basic principles

of separation of powers. “It is emphatically the province and

duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

On the other hand, when the proper construction of a FOIA

provision establishes a legal standard governing a factfinding

exercise, we give deference to the circuit court’s findings of

fact and view the facts on appeal “in the light most favorable

to the prevailing party.” American Tradition Inst. v. Rector &

Visitors of the Univ. of Va., 287 Va. 330, 338-39, 756 S.E.2d

435, 439 (2014) (internal quotation marks and alterations

omitted). This appellate deference extends not only to the

circuit court’s resolution of contested evidence, but also to

all reasonable inferences that may be drawn from that evidence.

“Where divergent or conflicting inferences reasonably might be

drawn from established facts their determination is exclusively

2 In this case, we have reviewed the advisory opinions of the Virginia Freedom of Information Advisory Council, particularly Advisory Op. AO-04 (May 22, 2014) and its predecessors. See Code § 30-179(1) (authorizing the Virginia Freedom of Information Advisory Council to issue advisory opinions). 5 for the fact-finding body.” Hopson v. Hungerford Coal Co., 187

Va. 299, 308, 46 S.E.2d 392, 396 (1948).

B. Virginia Freedom of Information Act

The Virginia FOIA “has existed, in one form or another,

since 1968” with the primary purpose of facilitating “openness

in the administration of government.” American Tradition

Inst., 287 Va. at 339, 756 S.E.2d at 439-40. By its own terms,

the statute puts the interpretative thumb on the scale in favor

of disclosure: “The provisions of [FOIA] 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.” Code § 2.2-

3700(B). Disclosure exemptions must be “narrowly construed” in

favor of disclosure. Id.

Fitzgerald argues on appeal that this laudable statutory

bias in favor of disclosure requires that we construe the FOIA

to mandate that the Sheriff’s Office disclose a suicide note,

which was discovered during an ongoing criminal investigation.

Like the circuit court, we do not believe that the statutory

language can bear the weight of Fitzgerald’s argument.

Code § 2.2-3706 governs the disclosure of criminal

records. Subsection (A)(1) requires disclosure of certain

specific information, including “[c]riminal incident

information.” Certain types of criminal records not required

6 to be produced under subsection (A)(1) “may be disclosed” under

subsection (A)(2) at the discretion of the custodian, if no

other law forbids disclosure. “Criminal investigative files”

are among the categories of records subject to the

“[d]iscretionary releases” provisions of subsection (A)(2).

Code § 2.2-3706(B) governs the mandatory disclosure of

“[n]oncriminal records.” Among other things, these records

include those “required to be maintained by law-enforcement

agencies pursuant to [Code] § 15.2-1722.” Code § 2.2-3706(B).

A records-retention statute outside the text of FOIA, Code

§ 15.2-1722(A), requires sheriffs and police chiefs to maintain

“adequate personnel, arrest, investigative, reportable

incidents, and noncriminal incidents records necessary for the

efficient operation of a law-enforcement agency.” The failure

to do so “shall constitute a misdemeanor.” Id. Subsection (B)

of Code § 15.2-1722 defines “[n]oncriminal incidents records”

as “compilations of noncriminal occurrences of general interest

to law-enforcement agencies, such as missing persons, lost and

found property, suicides and accidental deaths.”

1. Criminal Investigative Files

The proper sequencing of these provisions begins with an

examination of Code § 2.2-3706(A)(1)(a), which requires

disclosure of certain specified “[c]riminal incident

information.” Fitzgerald properly concedes that the requested

7 suicide note does not fall within this mandatory disclosure

provision.

We next look to subsection (A)(2)(a), which permits, but

does not mandate, disclosure of “[c]riminal investigative

files.” Sitting as factfinder, the circuit court found that

the requested suicide note was one of many documents in a

criminal investigative file protected from mandatory disclosure

by Code § 2.2-3706(A)(2)(a). At no point did Fitzgerald

suggest, nor did any evidence imply, that the Sheriff’s Office

acted outside its lawful authority in opening a criminal

investigative file to investigate the unexpected and unattended

death of a senior United States Air Force official. The

Sheriff’s Office thus had the discretion, but not the duty, to

disclose documents within this file.

Even so, Fitzgerald argues, the criminal investigative

file lost its character as such when the file was closed by the

Criminal Investigations Division of the Sheriff’s Office. We

find nothing in the statutory text or in its legislative

context to support this counterintuitive conclusion.

Suffice it to say, the point of a criminal investigation

is to investigate — to determine whether a crime occurred and,

if so, who perpetrated it. A criminal investigation may or may

not lead to a prosecution. But that does not mean that the

application of FOIA disclosure requirements is dependent upon

the outcome of the investigation. In this case, investigators 8 discovered the suicide note during an ongoing criminal

investigation. That the investigation was later closed is

inconsequential for purposes of FOIA disclosure principles.

2. Noncriminal Records

Fitzgerald next relies upon Code § 2.2-3706(B), which

requires the mandatory release of certain records, including

those “required to be maintained by law-enforcement agencies

pursuant to [Code] § 15.2-1722.” As noted earlier, this non-

FOIA records-retention statute requires sheriffs and police

chiefs to maintain “adequate personnel, arrest, investigative,

reportable incidents, and noncriminal incidents records

necessary for the efficient operation of a law-enforcement

agency.” Code § 15.2-1722(A). According to Fitzgerald,

documents related to a suicide (including the decedent’s

suicide note) should be considered “noncriminal incidents

records” subject to disclosure under Code § 15.2-1722.

We first address the assumption underlying Fitzgerald’s

argument. He seeks a broad construction of Code § 15.2-1722 on

the ground that the General Assembly has prescribed that the

“provisions” of the FOIA “shall be liberally construed” in

favor of disclosure. Appellant’s Brief at 18-19 (quoting Code

§ 2.2-3700(B)). We find this argument problematic for several

reasons.

9 Code § 15.2-1722 is incorporated by reference in the FOIA

but is not codified as a stand-alone provision of the FOIA.

That seemingly semantic point unmasks a distinction with a

significant difference. Code § 15.2-1722 is a records-

retention statute that carries a criminal sanction. If there

were any textual ambiguities in Code § 15.2-1722, the rule of

lenity would direct us to adopt a narrow construction, thus

reducing exposure to criminal liability. That necessarily

narrow construction would run contrary to the broad

construction required by the FOIA, which expands the scope of

disclosure. 3 We need not resolve this conundrum, however,

because Code § 15.2-1722 has a plain meaning inconsistent with

Fitzgerald’s interpretation.

Subsection (B) of Code § 15.2-1722 defines “[n]oncriminal

incidents records” as “compilations of noncriminal occurrences

3 Only when a “penal statute is unclear” do Virginia courts apply the rule of lenity and strictly construe the statute in the criminal defendant’s favor. Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998) (footnote omitted); see also Holsapple v. Commonwealth, 266 Va. 593, 598, 587 S.E.2d 561, 564 (2003) (“We do not agree that the statutory language is ambiguous. Hence, we construe the language according to its plain meaning without resort to rules of statutory interpretation.”). The rule of lenity serves only to resolve genuine ambiguities and “does not abrogate the well recognized canon that a statute . . . should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language.” Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (omission in original) (quoting Gough v. Shaner, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955)). 10 of general interest to law-enforcement agencies, such as

missing persons, lost and found property, suicides and

accidental deaths.” In ordinary terms, a compilation is

something that has been compiled. See generally Webster’s

Third New International Dictionary 464 (2002) (defining

“[c]ompilation” as “the act or action of gathering together

written material esp. from various sources” or “something that

is the product of the putting together of two or more items”).

A compilation of poems, for example, is a collection of

different poems. 4 It is not a single poem or even a collection

of background materials related to a single poem.

The suicide note, standing alone, cannot constitute a

compilation under Code § 15.2-1722(B). The pertinent language

requires that “compilations of noncriminal occurrences” be

maintained and lists suicides as an example of such

occurrences. Code § 15.2-1722(B). A compilation of suicides

is a record of more than one suicide. The suicide note may be

a compilation of words, but not a compilation of suicides.

We similarly reject the assertion that the entire criminal

investigative file maintained by the Sheriff’s Office could be

4 See Black’s Law Dictionary 344 (10th ed. 2014) (defining “compilation” in the context of copyright law as “[a] collection of literary works arranged in an original way”); accord 17 U.S.C. § 101 (2014) (defining “compilation” as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”). 11 deemed a compilation of suicide records. Code § 15.2-1722(B)

addresses “[n]oncriminal incidents records,” specifically

defined as "compilations of noncriminal occurrences . . . such

as . . . suicides." (Emphasis added.) A file containing

reports concerning a single incident, later determined to be a

suicide, is not a compiled collection of information concerning

multiple suicides. The criminal investigative file in this

case — protected against mandatory disclosure by Code § 2.2-

3706(A)(2)(a) — did not become, and never was, a compilation of

suicides.

Nothing in our reasoning, however, implies that a

compilation can only be a spreadsheet of raw data points or

statistics. Although it can certainly be that, the statutory

meaning of compilation is not necessarily so limited. In Tull

v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998), for example, we

treated a 911 tape recording of multiple channels of radio

traffic and telephone calls as a

grouping of electronically gathered information and thus a “compilation.” The tape at issue in this case is not just a recording of the conversation between the 911 caller and the dispatcher. Rather, it is a recording on multiple channels of all radio traffic handled through the . . . dispatch office in addition to conversations occurring on . . . four telephone lines and conversations between individuals physically in the dispatcher’s office. In short, all activity occurring in the dispatch office as well as that on the four telephone lines is compiled on this tape.

12 Id. at 184, 494 S.E.2d at 858-59. In Tull, the 911 tape

aggregated voice data from multiple sources (radio and

telephonic) into a single audio record. It was this gathering

of the many into one that made it a compilation. 5

For these reasons, both the text and the syntax of Code

§ 15.2-1722(B) render Fitzgerald’s interpretation of it

implausible. Neither the suicide note requested by Fitzgerald

nor the investigative file in its entirety was a compilation of

records of multiple suicides. The circuit court, therefore,

correctly rejected Code § 15.2-1722(B) as a basis for ordering

the disclosure of the suicide note contained in the criminal

investigative file.

III.

In sum, the record supports the circuit court’s finding

that the suicide note was obtained in the course of a criminal

investigation. Finding no error in the circuit court’s

application of the governing statutes, we affirm.

Affirmed.

5 The reasoning in Tull that the 911 tape was a compilation led to the conclusion that the tape need not be disclosed under former Code § 15.1-135.1. That statute provided that “records required to be maintained by this section shall be exempt” from the FOIA. Former Code § 15.1-135.1(A) (1989 Repl. Vol.). The General Assembly repealed former Code § 15.1-135.1 in 1997 and reenacted it without the FOIA exemption, recodifying it as Code § 15.2-1722. See 1997 Va. Acts ch. 587. In 1999, the legislature added the records kept pursuant to Code § 15.2-1722 to the mandatory disclosure requirements of former Code § 2.1-342.2, the precursor to Code § 2.2-3706(B). See 1999 Va. Acts chs. 703, 726. 13