Fitzgerald v. Loudoun County Sheriff's Office ( 2015 )

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
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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
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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)).
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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”).
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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.
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