Present:    All the Justices

RAYMOND D. CARTWRIGHT
                                           OPINION BY
v.   Record No. 042240               JUSTICE LAWRENCE L. KOONTZ, JR.
                                          June 9, 2005
COMMONWEALTH TRANSPORTATION
 COMMISSIONER OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                       E. Preston Grissom, Judge


      In this appeal, the issue we consider is whether the

circuit court erred in denying a petition for writ of mandamus

brought pursuant to Code § 2.2-3713 on the ground that the

petitioner had an adequate remedy at law and, thus, mandamus

would not lie.

                               BACKGROUND

      The pertinent facts are not disputed.    On January 19, 2004,

Raymond D. Cartwright, a citizen of this Commonwealth, made a

request to the Virginia Department of Transportation (VDOT)

under The Virginia Freedom of Information Act (FOIA), Code

§§ 2.2-3700 through 2.2-3714, seeking a photocopy of the “sales

brochure” compiled by VDOT in connection with VDOT’s highway

construction project on Route 17 in the City of Chesapeake.

Cartwright was a joint owner of property located on Route 17

that VDOT had determined was needed to complete the project.    A

sales brochure, as used in this context, is a document prepared

by VDOT for the purpose of preparing appraisals and offers for
property that is subject to condemnation for public use.      VDOT

denied the request, expressly contending that the sales brochure

was exempt from disclosure under the FOIA by Code § 2.2-3705(8),

permitting a public body to withhold “[l]egal memoranda and

other work product compiled specifically for use in litigation,”

and Code § 2.2-3705(35), permitting a public body to withhold

“[a]ppraisals and cost estimates of real property subject to a

proposed purchase, sale or lease, prior to the completion of

such purchase, sale or lease.”1

        At the time Cartwright filed the FOIA request, he was a

party to a pending condemnation proceeding regarding his

property on Route 17, which VDOT had initiated in the Circuit

Court of the City of Chesapeake.      Cartwright had requested the

same document from VDOT through discovery served on August 26,

2003.       Although VDOT had not produced the document in response

to the discovery request, Cartwright had not sought to compel

compliance with his request at that time.

        On January 30, 2004, Cartwright filed a petition for writ

of mandamus in the same circuit court pursuant to Code § 2.2-

3713 seeking an order directing the Commonwealth Transportation



        1
       Code § 2.2-3705 was repealed in 2004. Acts 2004, c. 690.
The exclusions relied upon by VDOT now appear at Code § 2.2-
3705.1(3) (legal memoranda) and Code § 2.2-3705.1(8) (appraisals
and cost estimates).
                                   2
Commissioner2 to provide a copy of the sales brochure to

Cartwright.    In addition, Cartwright requested an award of

“reasonable costs and attorneys’ fees” as permitted by Code

§ 2.2-3713(D).   On March 2, 2004, VDOT filed a demurrer to the

petition for writ of mandamus, asserting that the refusal of

Cartwright’s request “was made in good faith and based upon a

plainly correct interpretation of the wording of the statute.”

VDOT further asserted that mandamus was not appropriate because

Cartwright could seek to obtain the same information through a

motion to compel discovery in the pending condemnation action

and, therefore, he had an adequate remedy at law.

     Following a hearing, the circuit court entered a final

order dated July 9, 2004, sustaining VDOT’s demurrer and denying

Cartwright’s petition for writ of mandamus.   The circuit court

found that Cartwright had “an adequate remedy at law.

Consequently, mandamus does not lie, under [T]he Virginia

Freedom of Information Act.”   The circuit court expressly

withheld making a ruling on whether the sales brochure was

exempt from disclosure under the FOIA.   We awarded Cartwright

this appeal.




     2
      The Commonwealth Transportation Commissioner is the chief
executive officer of VDOT. Code § 33.1-3. For clarity, we will

                                    3
                              DISCUSSION

        Initially, we note that VDOT has filed a motion to dismiss

this appeal, averring therein that on January 31, 2005, VDOT

“mailed [Cartwright] a copy of the sales brochure that was the

subject of Cartwright’s mandamus petition.”    VDOT contends that

the appeal should be dismissed as moot because “there no longer

is any dispute whether Cartwright will be furnished a copy of

the sales brochure,” and because VDOT has offered assurance that

it will honor future requests for sales brochures made under the

FOIA.

        We hold that Cartwright’s appeal is not moot.   It is true

that VDOT provided Cartwright with the requested sales brochure.

However, this action does not resolve the issue joined in this

appeal, that is, whether a mandamus action brought pursuant to

Code § 2.2-3713 is barred by the petitioner having an adequate

remedy at law.    This is so because, if Cartwright prevails, the

issues whether his petition for mandamus should have been

granted because VDOT violated the FOIA and, if so, his

entitlement to recover his costs and fees would remain to be

resolved in the circuit court.    Thus, the issue raised by this

appeal “is not one in which there is no actual controversy or in



refer to VDOT’s actions rather than to those of the Commissioner
in his representative capacity.
                                   4
which no relief can be afforded,” and, consequently, it is not

moot.    RF&P Corp. v. Little, 247 Va. 309, 315, 440 S.E.2d 908,

912 (1994); see also Hankins v. Town of Virginia Beach, 182 Va.

642, 643-44, 29 S.E.2d 831, 832 (1944).

        We now turn our consideration to the merits of the issue

raised in this appeal.    In doing so, we emphasize that the issue

decided by the circuit court and now before us in this appeal is

whether a petition for writ of mandamus brought pursuant to Code

§ 2.2-3713 can be properly denied on the ground that the

petitioner has an adequate remedy at law.    The circuit court

expressly withheld making any ruling on whether the specific

FOIA request in this case was properly denied by VDOT.

Accordingly, that issue is not before us, and we express no

opinion regarding it.

        Circuit courts have the jurisdiction to issue a writ of

mandamus in any case where it is “necessary to prevent the

failure of justice and in which mandamus may issue according to

the principles of common law.”    Code § 17.1-513.   The common law

issuance of a writ of mandamus is “an extraordinary remedy

employed to compel a public official to perform a purely

ministerial duty imposed upon [the official] by law.”    Richlands

Medical Assoc. v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d

737, 739 (1985).

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     We have consistently held that “[t]he writ of mandamus

. . . only issues when there is a clear and specific legal right

to be enforced, or a duty which ought to be and can be

performed, and where there is no other specific and adequate

legal remedy.”   Hertz v. Times-World Corp., 259 Va. 599, 608,

528 S.E.2d 458, 463 (2000) (quoting Tyler v. Taylor, 70 Va. (29

Gratt.) 765, 766-67 (1878)); accord Town of Front Royal v. Front

Royal and Warren County Indus. Park Corp., 248 Va. 581, 584, 449

S.E.2d 794, 796 (1994); Hall v. Stuart, 198 Va. 315, 323-24, 94

S.E.2d 284, 290 (1956).   We have further noted that to be

“adequate,” the legal remedy “must be equally as convenient,

beneficial, and effective as the proceeding by mandamus.”

Carolina, C & O Ry. v. Board of Supervisors, 109 Va. 34, 37, 63

S.E. 412, 413 (1909).

     In developing this body of law with respect to the

extraordinary relief afforded by the issuance of a writ of

mandamus, we generally have considered petitions filed under the

general jurisdiction of the circuit courts.   However, prior to

this case we have not considered whether a petition for writ of

mandamus filed in a circuit court and specifically authorized by

the FOIA may be denied based on the availability of another

adequate remedy at law.



                                   6
     The intent of the General Assembly in enacting the FOIA is

clearly expressed in its provisions.    As pertinent here, the

General Assembly’s intent is to “ensure[] the people of the

Commonwealth ready access to records in the custody of a public

body or its officers and employees” so as “to promote an

increased awareness by all persons of governmental activities

and afford every opportunity to citizens to witness the

operations of government.”   Code § 2.2-3700(B).   To effectuate

that intent, the General Assembly has expressly provided that

the provisions of the FOIA are to be “liberally construed.”

Id.; see also Beck v. Shelton, 267 Va. 482, 487, 593 S.E.2d 195,

197 (2004); City of Danville v. Laird, 223 Va. 271, 276, 288

S.E.2d 429, 431 (1982).

     Specific provisions of the FOIA foster its salutary

statutory scheme to provide freedom of information consistent

with open government.   Code § 2.2-3713(A) expressly authorizes

“[a]ny person . . . denied the rights and privileges conferred

by this chapter . . . to enforce such rights and privileges by

filing a petition for mandamus.”   In addition, the statute

further provides that the petition for mandamus may be filed in

either the general district court or the circuit court of the

jurisdiction in which the denial of the right or privilege under

the FOIA is alleged to have occurred.   Id.   This is the only

                                   7
instance in which the general district courts are given

concurrent jurisdiction with the circuit courts to hear mandamus

proceedings.   See Code § 16.1-77(6).

     The statute further provides that “[t]he petition for

mandamus . . . shall be heard within seven days of the date when

the same is made.”     Code § 2.2-3713(C).   “A single instance of

denial of the rights and privileges conferred by this chapter

shall be sufficient to invoke the remedies granted herein.”

Code § 2.2-3713(D).    And if the court finds the denial to

constitute a violation of the FOIA, “the petitioner shall be

entitled to recover reasonable costs and attorneys’ fees from

the public body if the petitioner substantially prevails on the

merits of the case, unless special circumstances would make an

award unjust.”   Id.

     Finally, and perhaps most significantly, the statute

provides that in such proceedings “the public body shall bear

the burden of proof to establish an exemption by a preponderance

of the evidence.   Any failure by a public body to follow the

procedures established by this chapter shall be presumed to be a

violation of this chapter.”    Code § 2.2-3713(E).   This is

contrary to the rule in common law mandamus proceedings which

places the burden on the petitioner to prove the violation of a

right or privilege and in which there is a presumption of

                                     8
regularity in the conduct of government business.   See Legum v.

Harris, 205 Va. 99, 103, 135 S.E.2d 125, 128 (1964).

     VDOT acknowledges that these statutory provisions have

“modified” traditional principles and procedural requirements

relating to mandamus proceedings in the context of the FOIA.    It

nevertheless contends that a petitioner must prove lack of an

adequate legal remedy to be entitled to mandamus for an alleged

violation of the rights and privileges conferred by the FOIA.

The thrust of this contention is that, in light of the above

express modifications, the omission of any reference in Code

§ 2.2-3713 to the common law requirement that the petitioner in

a mandamus proceeding prove that an adequate remedy at law does

not exist manifests the intent of the General Assembly not to

eliminate that requirement in a proceeding involving a FOIA

request.

     In support of its position, VDOT first argues that we would

be required to add words to Code § 2.2-3713 “under the guise of

interpretation” in order to conclude that the General Assembly

intended to eliminate the traditional requirement of a

petitioner in a mandamus proceeding to prove lack of an adequate

legal remedy.   VDOT relies upon well-established principles that

need not be recited at length here.    See, e.g. Coca-Cola

Bottling Co. of Roanoke v. County of Botetourt, 259 Va. 559,

                                   9
565, 526 S.E.2d 746, 750 (2000).    Our analysis of the issue

presented in this case simply does not involve our careful and

consistent refusal to add words to a statute even if such might

clarify the statute.

     The provisions of Code § 2.2-3713 significantly distinguish

the right to mandamus it provides from the common law right to

mandamus.   By granting concurrent jurisdiction to the circuit

and general district courts, expediting the proceedings,

providing for an award of costs and attorneys’ fees, and

shifting the burden of proof to the public body, the General

Assembly has evinced an intent to provide mandamus relief under

Code § 2.2-3713(A) different from that of common law mandamus.

These distinctions are entirely consistent with the express

purpose of the FOIA and manifestly facilitate access to

appropriate governmental records.   Contrary to VDOT’s

contention, we are of opinion that the lack of any reference in

this statute to the common law requirement that the petition

prove a lack of adequate remedy at law evinces the intent of the

General Assembly to eliminate that common law prerequisite to

the issuance of a writ of mandamus.      Such is clearly consistent

with the salutary statutory scheme of the FOIA.

     VDOT principally relies upon our decision in Gannon v.

State Corporation Commission, 243 Va. 480, 416 S.E.2d 446

                                    10
(1992), to support its position in this case.   This reliance is

misplaced.   The petitioner in that case had filed a FOIA request

for certain records in the possession and control of the State

Corporation Commission, which was denied.   Rather than availing

himself of the remedy provided by the pertinent Rules of the

Commission to challenge the denial of his request, the

petitioner filed a petition for writ of mandamus in this Court.

Under those circumstances, we dismissed Gannon’s petition,

holding that he was required to avail himself of his “‘specific

and adequate remedy’ under the Commission’s Rules before seeking

a writ of mandamus in this Court.”    Id. at 483, 416 S.E.2d at

448.   Gannon did not involve a mandamus petition filed in a

circuit court pursuant to Code § 2.2-3713(A), and does not

address the issue presented in this appeal.

       We hold that a citizen alleging a violation of the rights

and privileges afforded by the FOIA and seeking relief by

mandamus pursuant to Code § 2.2-3713(A) is not required to prove

a lack of an adequate remedy at law, nor can the mandamus

proceeding be barred on the ground that there may be some other

remedy at law available.   Accordingly, we hold that the circuit

court erred in sustaining VDOT’s demurrer and denying

Cartwright’s petition for writ of mandamus on the ground that he



                                     11
had an adequate remedy at law by means of discovery in the

pending condemnation proceeding.

        Although Cartwright has received the information he sought

to compel VDOT to disclose, as we have noted above, a

determination that he would have been entitled to disclosure of

that information under the FOIA would further entitle him to

receive an award of reasonable costs and attorneys’ fees in the

absence of a finding by the circuit court of special

circumstances that would make such an award unjust.

Accordingly, because the circuit court did not reach the issue

whether the sales brochure was subject to disclosure under the

FOIA, we must remand the case for further consideration of that

issue, and, if the court finds Cartwright’s request was

improperly denied, for consideration of whether and in what

amount he should be awarded his reasonable costs and attorneys’

fees.

                              CONCLUSION

        For these reasons, we will reverse the judgment of the

circuit court and remand the case for further proceedings

consistent with the views expressed in this opinion.

                                              Reversed and remanded.




                                     12
