Elected prosecutor not a ‘public body’ under records law

From the Summer 2001 issue of The News Media & The Law, page 38.

A unanimous Virginia Supreme Court severely restricted access to government records by ruling that a Commonwealth’s Attorney is not a “public body” and is therefore immune to most of the state’s open records law.

In a modest nod to disclosure, the court also noted that a Commonwealth’s Attorney, as a “law enforcement official,” must make some information public in “summary” form, as he had done in this case.

The June 8 opinion ended a year-long pursuit by defense attorney James G. Connell III of Fairfax for access to actual copies of police records containing “criminal incident information” about the arrest of his client, Ahmed Shireh, on charges of carjacking. Commonwealth’s Attorney Andrew Kersey had refused to provide copies of the records, providing a summary of them instead.

At Shireh’s preliminary hearing in April 2000, Connell saw Kersey holding a police report on the incident, and he asked the prosecutor for all criminal incident documents relating to the charges against his client. Kersey delayed for 11 days and then sent Connell only a summary of “incident information” found in the requested documents.

Connell sued and lost in Fairfax County Court in May 2000, and he appealed the judge’s ruling that as a “constitutional officer,” Kersey was not subject to the state’s Freedom of Information Act. Kersey said his office was not a “public body,” as defined by the state Freedom of Information Act. He argued that phrase only applies to positions and agencies created by legislative or executive order, not a Commonwealth’s Attorney, which is a position created by the state constitution.

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 qualified as a public body. It is entirely supported by public money, and furthermore, Kersey’s Commonwealth’s Attorney office received delegated work from the County of Fairfax and the Commonwealth.

In his Supreme Court brief, Connell also argued that the Code of Virginia requires Kersey to provide the actual records including the incident information he requested because the code mandates complete disclosure of “records kept by law enforcement agencies,” not summaries.

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 the definition of public body should apply to constitutional officers. The public and the press need access to documents showing how they spend taxpayer money and whether they 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, and because the legislature included the Commonwealth’s Attorney in a separate section of the state open records law relating to the duties of “law enforcement officials” to release information.

Frosty Landon, executive director of the Virginia Coalition for Open Government, said 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’s 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 the state’s FOI Act in 1999, said the act covered constitutional officers.

The court also appeared to condone Kersey’s decision to summarize the information rather than redact any non-public portions. The Court wrote that because the Code of the Commonwealth of Virginia defines “criminal incident information” as a “general description of the criminal activity reported therein,” the statute only requires a Commonwealth’s Attorney to release summarized information, not the original record. — CC , AG