Supreme Court of Virginia rules that the Commonwealth’s Attorney’s office is not a "public body" and not subject to FOI request

The Reporters Committee for Freedom of the Press today urged the Virginia Legislature to clarify the state Freedom of Information Act in response to a Virginia Supreme Court opinion declaring that the Commonwealth’s Attorney’s office is not a “public body” as defined in the Act.

The Virginia Supreme Court issued its opinion in Connell v. Kersey this morning. The case was 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. The Reporters Committee for Freedom of the Press and the Virginia Coalition for Open Government filed a “friend-of-the-court” brief with the Virginia Supreme Court supporting Connell. Specifically, the Reporters Committee 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 referred to the Reporters Committee’s concerns in its opinion, stating:

“We permitted The Reporters Committee for Freedom of the Press and the Virginia Coalition for Open Government to file a brief as amici curiae in support of Connell. On brief, the amici assert that their ‘interest here is in preserving access to government documents . . . [which] permits the public to learn how their tax dollars are spent, to benefit from information in government custody, and to hold government officials accountable for heir work.’ We share that concern expressed by amici . . . . [O]ur 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.

“The decision in Connell v. Kersey raises some concerns because it is not clear when the public or press would be able to obtain information from a constitutional officer in Virginia, such as the Commonwealth’s Attorney or the sheriff’s office. This is especially troubling if it means that we could not investigate how those offices spend taxpayer dollars or whether they engaged in favoritism to some suspects,” said Lucy Dalglish, Executive Director of the Reporters Committee. “The court’s opinion, on its face, seems to exempt all constitutional officers from all FOI requests, even though it states that it shares our concern about access to government records.”

Dalglish expressed concern about the practical effect of the decision, stating “it seems that constitutional officers can provide records if they choose, but are not required to do so.”

The Reporters Committee urged the Virginia Legislature to reconsider the definition of “public body” as defined by the FOI Act to specifically include constitutional officers. “It is important that the public be able to obtain some records from those officers, even if exemptions are created for investigatory records,” said Dalglish. “The Legislature should clarify the Act to ensure that the public — and the constitutional officers themselves — know exactly what is accessible and what is not.”

The Reporters Committee brief filed in this case can be found at https://www.rcfp.org/news/documents/connell.html .

The Reporters Committee is a nonprofit organization legal defense organization for journalists that also counsels on First Amendment and Freedom of Information issues.