Carraway v. Hill , 265 Va. 20 ( 2003 )

Present: All the Justices
BARBARA O. CARRAWAY
v. Record No. 020487 OPINION BY JUSTICE ELIZABETH B. LACY
January 10, 2003
ELIZABETH S. HILL
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Norman Olitsky, Judge Designate
In this appeal, we consider whether the Government Data
Collection and Dissemination Practices Act, Code §§ 2.2-3800
through –3809 (the Act), applies to constitutional officers.
From January 5 to April 2, 2001, Elizabeth S. Hill was
employed by a temporary personnel service and assigned to the
office of the City Treasurer of the City of Chesapeake. On
April 2, 2001, Hill became a direct employee of the office.
Hill's employment with the office ended on April 19, 2001. In
May 2001, Hill became a candidate for the position of City
Treasurer. Barbara O. Carraway, the incumbent, was running
for re-election.
During the campaign, Carraway was interviewed by a
newspaper reporter in response to a newspaper article in which
Hill accused Carraway of failing to register a charity group
Carraway operated at her office. In publishing the interview,
the reporter quoted Carraway as stating that Hill was
"released" from the City Treasurer's office after "less than
three weeks" of employment. Hill's lawyer subsequently wrote
to Carraway seeking a retraction of her statements and an
apology, asserting that Hill had voluntarily resigned her
employment with the Treasurer's office. Hill, who had
obtained her employment file from the City of Chesapeake
Department of Human Resources, also accused Carraway of
"padding" Hill's personnel file with negative comments
concerning her employment by filing certain memoranda after
her resignation. The newspaper obtained a copy of this letter
and published an article detailing its contents.
Carraway's attorney responded to Hill's attorney by
letter dated October 16, 2001, asserting that Carraway's
statements were accurate and that, in accord with standard
office procedure, memoranda concerning Hill's employment were
transferred from the City Treasurer's employment files to the
City of Chesapeake Human Resource Department's files after the
termination of Hill's employment. Carraway provided the
newspaper reporter with a copy of this letter.
On October 23, 2001, Hill filed a petition for
declaratory judgment and injunctive relief asserting that
Carraway violated the Act by giving the newspaper reporter
information from Hill's employment file. Following a bench
trial, the trial court issued a letter opinion stating that,
"[b]ased upon all of the evidence presented to the Court, in
particular the defendant's transmission and release of her
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attorney's letter of October 16, 2001 to the news media,"
Carraway violated the Act. The trial court entered an order
enjoining Carraway from committing any further violations of
the Act "with respect to Elizabeth Hill" and awarded Hill
attorneys' fees and costs pursuant to Code § 2.2-3809. * We
granted Carraway an appeal.
The Government Data Collection and Dissemination
Practices Act was enacted in response to concerns over
potentially abusive information-gathering practices by the
government, including enhanced availability of such personal
information through technology. Hinderliter v. Humphries, 224
Va. 439, 443-44, 297 S.E.2d 684, 686 (1982). The Act does not
make such personal information confidential but establishes
certain practices which must be followed in the collection,
retention, and dissemination of that information. Id. at 447,
297 S.E.2d at 688.
The specific provision of the Act which Carraway
allegedly violated was subsection (A)(1) of Code § 2.2-3803.
That subsection provides
[a]ny agency maintaining an information system that
includes personal information shall:
*
The trial court's order referred to the predecessor
statute which was enacted as the Privacy Protection Act of
1976, Code §§ 2.1-377 through –386, but which was repealed and
reenacted under its current name without substantive change,
effective October 1, 2001.
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1. Collect, maintain, use, and disseminate
only that personal information permitted or
required by law to be so collected, maintained,
used, or disseminated, or necessary to accomplish a
proper purpose of the agency.
Carraway contends here, as she did below, that a
constitutional officer does not come within the Act's
definition of "agency" and, therefore, as Treasurer of the
City of Chesapeake she was not subject to the provisions of
the Act. We agree.
As recited above, the purpose of the Act is to provide
standards which a government agency must follow in the
operation of personal information systems. To accomplish this
purpose, the provisions of the Act impose specific procedures
on those agencies. See Code §§ 2.2-3803, -3805, –3806, -3808.
The Act defines "agency," in relevant part, as "any agency,
authority, board, department, division, commission,
institution, bureau, or like governmental entity of the
Commonwealth or of any unit of local government including
counties, cities, towns and regional governments and
departments . . . ." Code § 2.2-3801(6). "Agency" as used in
the Act refers to an entity that receives its authority
through legislative or executive action. See Connell v.
Kersey, 262 Va. 154, 161, 547 S.E.2d 228, 231 (2001). In
contrast, a constitutional officer is an independent public
official whose authority is derived from the Constitution of
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Virginia even though the duties of the office may be
prescribed by statute. See id. at 162, 547 S.E.2d at 232.
While constitutional officers may perform certain functions in
conjunction with units of county or municipal government,
neither the officers nor their offices are agencies of such
governmental units.
Had the General Assembly intended the Act to include
constitutional officers, it could have expanded the definition
of "agency" to reach such constitutional officers. See e.g.,
Code § 42.1-77 (defining "public official" to include any
person holding office created by Constitution of Virginia).
Accordingly, we conclude that the Act does not apply to a city
treasurer, a constitutional officer.
Hill argued on brief and at oral argument, however, that,
even if the Act did not apply to the Office of the City
Treasurer, it did apply to the City of Chesapeake Human
Resources Department. Analogizing Carraway's actions to that
of a member of the board of supervisors in Hinderliter v.
Humphries, Hill maintains that Carraway violated the Act when
she provided information held by the Chesapeake Human
Resources Department to her attorney and subsequently to the
newspaper reporter.
In Hinderliter, a member of the board of supervisors
received a copy of a police report containing personal
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information on a police officer which the board member, in
turn, allowed her daughter to use. Because the board member
was entitled to the report in her official capacity, there was
no violation when the board member was given the information.
The board member, however, did violate the Act when she
allowed her daughter access to and use of the report. Id. at
449-50, 297 S.E.2d at 689-90.
Hill's application of Hinderliter ignores the distinction
between the status of a member of the board of supervisors and
a constitutional officer. A county board of supervisors comes
within the Act's definition of "agency" and, therefore, a
member of such a board is subject to the provisions of the
Act. In the instant case, as we have said, Carraway as a
constitutional officer was not subject to the provisions of
the Act.
Finally, Hill argues that Carraway is subject to the
sanctions provided by the Act because Code § 2.2-3809 allows
an action against "any person or agency that has engaged, is
engaged, or is about to engage in any acts or practices" in
violation of the Act. (emphasis added) We reject Hill's
construction of this provision because such a construction
would subject persons unconnected with a government agency to
the Act's sanctions. Rather the phrase "any person" properly
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construed refers to those persons through whom covered
agencies conduct their business.
Because we conclude that the Act does not apply to
constitutional officers, we will reverse the judgment of the
trial court. Accordingly, we need not address Carraway's
remaining assignments of error.
Reversed and final judgment.
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