Lawrence v. Jenkins , 258 Va. 598 ( 1999 )

Present: All the Justices
ERIC R. LAWRENCE,
ZONING ADMINISTRATOR, ET AL.
v. Record No. 990030 OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 1999
JEFFREY G. JENKINS
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
In this appeal, we decide whether an individual
requesting documents pursuant to the Virginia Freedom of
Information Act (FOIA) is denied rights and privileges
conferred by that act when a responding public official
chooses to exercise an exemption, redacts the exempt
information from the documents, but fails to timely
reference the applicable Code section making portions of
the requested documents exempt. We conclude that, in this
situation, the requesting individual was not denied rights
and privileges under FOIA and that the circuit court
therefore erred by issuing a writ of mandamus and ordering
release of the exempt information. Accordingly, we will
reverse the judgment of the circuit court.
FACTS
Appellee Jeffrey G. Jenkins submitted a written FOIA
request to appellant Eric R. Lawrence, the zoning
administrator for Frederick County, pursuant to Code
§§ 2.1-340 through –346.1. 1 In his request, Jenkins asked
for “all documents with respect to any complaints made
concerning [his] property located at 1631 Redbud Road,
including, but not limited to, the complete original texts
of any such complaints, the identity of the complainants,
and the dates such complaints were made.” 2 The zoning
administrator timely furnished the requested information,
with the exception of the identity of the complainants. He
redacted that information from the documents. With regard
to the redacted information, Lawrence stated in his
response to the FOIA request that “the release of the
identity of complainants are [sic] protected and is not
provided for through the Freedom of Information Act.”
However, he did not reference the specific Code section
making the identity of the complainants exempt from
disclosure.
1
The General Assembly amended several provisions of
FOIA in 1999. All references to FOIA in this opinion are
to the provisions in effect before the 1999 amendments.
2
Jenkins initiated his FOIA request after the zoning
administrator had notified Jenkins that he was violating
Frederick County’s zoning ordinances. Jenkins appealed
that determination to the Board of Zoning Appeals. While
his appeal was pending, Jenkins brought the use of his
property into compliance with the zoning ordinances and
subsequently withdrew his appeal. Jenkins was not charged
with the misdemeanor crime of violating the zoning
ordinances.
2
Jenkins then filed a petition for a writ of mandamus.
In that petition, he contended that the zoning
administrator must either exercise a specific exemption
under FOIA when refusing to disclose information or release
the requested information. Accordingly, Jenkins asked the
circuit court to order the zoning administrator to produce
the requested documents “in an unaltered form.”
Shortly before a hearing on the petition, Lawrence
advised Jenkins in writing that the redacted information
was exempt from disclosure pursuant to Code § 2.1-
342(B)(1). 3 Nevertheless, the circuit court concluded that
the zoning administrator had not timely invoked an
exemption from disclosure pursuant to FOIA and that a
violation of that act had therefore occurred. Accordingly,
the court issued a writ of mandamus and directed the zoning
administrator to release the complete documents to Jenkins.
We awarded Lawrence this appeal.
ANALYSIS
The provision of FOIA at issue in this appeal is Code
§ 2.1-342(A)(3). That section provides that, when a public
body is responding to a FOIA request and determines that an
3
Code § 2.1-342(B)(1) provides that “[m]emoranda,
correspondence, evidence and complaints related to criminal
investigations” are excluded from the provisions of FOIA
but “may be disclosed by the custodian in his discretion.”
3
exemption applies to a portion of the requested
information, the public body may
delete or excise that portion of the records to which
an exemption applies, but shall disclose the remainder
of the requested records and provide to the requesting
citizen a written explanation as to why these portions
of the record are not available . . . with the
explanation making specific reference to the
applicable Code sections which make that portion of
the requested records exempt.
The public body must respond to the request within five
work days. Code § 2.1-342(A).
Jenkins argues that the zoning administrator did not
invoke the exemption provided in Code § 2.1-342(B)(1)
because Lawrence failed to reference that specific Code
section in his initial response to the FOIA request.
According to Jenkins, Code § 2.1-340.1 thus mandates
disclosure of the identity of the complainants in this
case. That section, which generally addresses the policy
considerations underlying the enactment of FOIA, states
that “[u]nless the public body specifically elects to
exercise an exemption provided by this chapter or any other
statute, . . . all reports, documents and other material
shall be available for disclosure upon request.” Jenkins
also points out that, when Lawrence did cite Code § 2.1-
342(B)(1), the response time of five work days specified in
Code § 2.1-342(A) had already expired. Therefore, he
4
contends that Lawrence’s failure to strictly comply with
Code § 2.1-342(A)(3) constitutes a denial of his request
and a violation of FOIA.
In response to Jenkins’ argument, Lawrence
acknowledges that, when he initially responded to the FOIA
request, he technically violated Code § 2.1-342(A)(3) by
failing to refer to the specific Code section making the
identity of the complainants exempt from disclosure. He
also admits that the response time of five work days had
expired when he provided the Code section to Jenkins.
Nevertheless, Lawrence asserts, and we agree, that he
utilized the exemption contained in Code § 2.1-342(B)(1) by
redacting the identity of the complainants from the
documents and stating in his initial response that their
identity is protected from disclosure under FOIA. Thus,
the issue before us is whether the trial court erred in
issuing the writ of mandamus and ordering the release of
the redacted information solely because the zoning
administrator, in electing to exercise an exemption
provided in FOIA, failed to timely refer to the specific
Code section making that portion of the requested documents
exempt.
A writ of mandamus is one of the remedies available
under Code § 2.1-346 when a person is denied rights and
5
privileges conferred under the provisions of FOIA. 4
However, “[a] writ of mandamus is an extraordinary remedial
process, which is not awarded as a matter of right but in
the exercise of a sound judicial discretion.” Richmond-
Greyhound Lines v. Davis, 200 Va. 147, 151, 104 S.E.2d 813,
816 (1958). One of the elements necessary before a writ of
mandamus issues is the clear right of the petitioner to the
relief being sought. Stroobants v. Fugate, 209 Va. 275,
278, 163 S.E.2d 192, 194 (1968) Thus, a writ of mandamus
was appropriate in this case only if Jenkins was denied
clearly established rights and privileges under FOIA. We
conclude that he was not.
The identity of the complainants, which Lawrence
redacted from the documents disclosed to Jenkins, is not
the kind of information subject to mandatory disclosure
under any provision of FOIA. Rather, that information
4
In addition to issuing a writ of mandamus, a court
may also award injunctive relief, reasonable costs, and
attorney’s fees. Code § 2.1-346. If a court determines
that a violation of the provisions of FOIA “was willfully
and knowingly made,” it shall impose on the offending
public official, in an individual capacity, “a civil
penalty of not less than $25 nor more than $1,000.” Code
§ 2.1-346.1.
In the present case, Jenkins asked not only for a writ
of mandamus but also for an award of costs and attorney’s
fees and the imposition of a civil penalty. The circuit
court issued only the writ of mandamus. Jenkins did not
assign cross-error to the court’s refusal to grant the
other requested relief.
6
comes within the exemption contained in Code § 2.1-
342(B)(1). 5 Consequently, its disclosure is subject to the
discretion of the zoning administrator. Lawrence exercised
that discretion and elected to withhold the identity of the
complainants. He redacted that information from the
requested documents and then advised Jenkins not only as to
the nature of the redacted information but also that it was
protected from disclosure under FOIA.
Thus, we conclude that Jenkins received all the
information that he was entitled to receive under FOIA.
Lawrence’s failure to refer to Code § 2.1-342(B)(1) within
five work days did not bring about a denial of any rights
or privileges afforded to Jenkins under the provisions of
FOIA and did not operate as a waiver of Lawrence’s
otherwise valid exercise of an applicable exemption. Cf.
Tull v. Brown, 255 Va. 177, 184, 494 S.E.2d 855, 859 (1998)
(public official’s decision to provide transcript of 911
tape recording did not waive right to deny access to tape
itself under applicable exemption). Accordingly, a writ of
mandamus was not an appropriate remedy in this case. See
Stroobants, 209 Va. at 276-77, 163 S.E.2d at 193-194
5
Jenkins has never asserted that the identity of the
complainants does not fall within the exemption created in
Code § 2.1-342(B)(1).
7
(citing Richmond, Fredricksburg & Potomac Ry. Co. v.
Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548 (1965)).
For these reasons, we will reverse the judgment of the
circuit court and dismiss Jenkins’ petition for a writ of
mandamus. 6
Reversed and writ denied.
6
Jenkins also asserts that Lawrence failed to
preserve the issues that he raises in this appeal. We find
no merit in Jenkins’ position. The statement of facts
certified by the circuit court pursuant to Rule 5:11
includes the zoning administrator’s position and argument
presented to the circuit court. Thus, the record
demonstrates that Lawrence properly preserved his
objections.
We also do not need to address Lawrence’s other
assignment of error.
8