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.

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