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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