Skip to content

Commonwealth attorney not subject to state FOI law

Post categories

  1. Freedom of Information

    NMU         VIRGINIA         Freedom of Information         Jun 11, 2001    

Commonwealth attorney not subject to state FOI law

  • The state Supreme Court ruled that the Commonwealth’s Attorney’s office is not a “public body” and therefore not subject to state open records laws.

The Virginia Supreme Court ruled on June 8, that the Commonwealth’s Attorney’s office is not a “public body” and does not have to comply with FOI requests.

The decision in Connell v. Kersey came in a case filed by a criminal defense attorney, James G. Connell III, against a Commonwealth’s Attorney, Andrew Kersey. Connell sought copies of police records pertaining to the arrest of Connell’s client, Ahmed Shireh. Kersey refused to provide the records, arguing that the Commonwealth’s Attorney’s office was not a “public body” as defined by the Freedom of Information Act, because the Commonwealth’s Attorney is a “constitutional officer,” which means that it derives it authority from the state constitution rather than from legislative or executive order.

The state FOI Act does not specifically include “constitutional officers” in its definition of “public bodies,” but it does state that “public bodies” are “any authority . . . or agency of the Commonwealth or of any political subdivision of the Commonwealth . . . supported wholly or principally by public funds.”

Connell argued that the Commonwealth’s Attorney’s office was a “public body” because it is entirely supported with public funds.

In a “friend-of-the-court” brief supporting Connell, The Reporters Committee for Freedom of the Press and the Virginia Coalition for Open Government argued that it was important to include constitutional officers within the definition of “public body” because members of the public or press may need to request documents showing how they spend taxpayer funds or whether they failed to properly investigate crimes.

The Virginia Supreme Court deflected the Reporters Committee’s concerns.

“We share that concern expressed by amici,” the court noted. “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.”

Nevertheless, the court concluded that “constitutional officers” were not “public bodies” because the statute did not specifically include them in the definition.

Frosty Landon, Executive Director of the Virginia Coalition for Open Government thought that the legislature should clarify the state FOI Act to specifically include constitutional officers in light of the court ruling.

“In our Coalition’s view, the court wrongly assumed that the General Assembly did not want ‘public body’ rules applying to commonwealth’s attorneys,” Landon said. He noted that Del. Clifton A. Woodrum (D-Roanoke), who chaired the legislature’s most recent study of the law, had disagreed with the preliminary ruling, saying “I do think [commonwealth attorneys] are a public body. He is an officer of that county as defined by the constitution.”

Landon also reported that Roger Wiley, a Richmond lawyer who helped Woodrum rewrite FOIA in 1999, agreed, saying “I certainly have always believed that constitutional officers were covered by the act.”

(Connell v. Kersey) AG

Related stories:


© 2001 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page