VIRGINIA:

     In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 8th day of
February, 2013.


Emmett H. Harmon, Chief of the James
City County Police Department, et al.,                   Appellants,

  against    Record No. 121118
            Circuit Court No. CL2012-50

Adam L. Ewing,                                           Appellee.

      Upon an appeal from a judgment rendered by the Circuit Court
         of the City of Williamsburg and James City County.

     Upon consideration of the record, briefs, and argument of

counsel, we are of the opinion that there is reversible error in

the judgment of the circuit court.    For the reasons explained

below, the judgment is affirmed in part, reversed in part, and the

case is remanded.

                            I. Background

     This petition concerns a request submitted by Adam L. Ewing to

the James City County Police Department (Department) pursuant to

the Virginia Freedom of Information Act, Code § 2.2-3700 et seq.

(VFOIA), regarding information and records relating to Ewing's

arresting officer, Ryan S. Shelton.

     On December 20, 2011, Ewing's counsel submitted a VFOIA

request to the Department seeking:    all criminal incident

information from 2011 incidents in which Ryan Shelton was the
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investigating officer or was otherwise involved; the names of

individuals, other than juveniles, arrested or charged by Shelton

or by other officers based on information supplied by Shelton in

2011; and records concerning Shelton kept pursuant to Code § 15.2-

1722, including any personnel records or conduct investigation

records.

     On December 21, the Department responded by releasing the

criminal incident report for Ewing only, noting that there were no

records relating to the second item because this request pertained

to information not consolidated into a record, and stating that any

records regarding conduct investigation would be in Shelton's

personnel file and would thus be withheld pursuant to Code § 2.2-

3705.1(1).   On January 4, 2012, the Department in an email

clarified that it "unintentionally misread" the first portion of

the request when it provided only records relating to Ewing's

arrest, and agreed to provide approximately 47 criminal incident

reports involving Officer Shelton from 2011.    The Department

indicated that its position on the personnel documents and identity

information remained unchanged.

     Ewing then petitioned for a writ of mandamus requiring the

production of all of the requested documents.    The circuit court

found in favor of Ewing and ordered the Department to produce the

identities of individuals arrested and charged by or on the

                                  2
information of Shelton and to produce all records concerning

Shelton kept pursuant to Code § 15.2-1722, including personnel

records.   The circuit court further awarded costs and fees in the

amount of $5,206.   The Department now appeals.

                           II.   Discussion

                        A. Personnel Documents

     The Department declined Ewing's request to produce personnel

records or conduct investigative records, stating that all such

records were contained in personnel files and citing Code § 2.2-

3705.1(1).   Code § 2.2-3705.1(1) exempts from VFOIA disclosure any

"[p]ersonnel records containing information concerning identifiable

individuals," except for production to the individual who is the

subject thereof or in the case of waiver by that individual.

     Ewing claims that, under Code § 2.2-3706 (entitled "Disclosure

of Criminal Records"), subsections (G) and (I) combine to exempt

personnel files of law enforcement officers from this provision.

These subsections read as follows:

     G. Records kept by law-enforcement agencies as required
     by § 15.2-1722[ 1] shall be subject to the provisions of
     this chapter except that those portions of noncriminal
     incident or other investigative reports or materials that
     contain identifying information of a personal, medical or
     financial nature may be withheld where the release of


     1
       Code § 15.2-1722 provides for, among other things, the
keeping of personnel records by law enforcement agencies.


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     such information would jeopardize the safety or privacy
     of any person.

                                 . . . .

     I. In the event of conflict between this section as it
     relates to requests made under this section and other
     provisions of law, this section shall control.

     Ewing argues that Code § 2.2-3706(G) is in conflict with Code

§ 2.2-3705.1 (entitled "Exclusions to application of chapter;

exclusions of general application to public bodies").

Specifically, he argues that the personnel record exemption of Code

§ 2.2-3705.1(1) conflicts with Code § 2.2-3706(G), which requires

that all applicable records, including law enforcement personnel

records, are subject to VFOIA.    This conflict, Ewing concludes,

invokes the "trumping" provision of subsection (I) of Code § 2.2-

3706, rendering personnel records of law enforcement officers

available to the public under VFOIA.

     No such conflict exists, however.     Code § 2.2-3706(G) requires

that applicable records shall be subject "to the provisions of this

chapter."   (Emphasis added.)   The provisions of "this chapter,"

that is, all of VFOIA, include not only the disclosure provisions

of VFOIA but also the exclusion provisions of the chapter set forth

in Code § 2.2-3705.1.   In the absence of a conflict, there is no

reason to involve Code § 2.2-3706(I) in the analysis.    Personnel

records covered by subsection (G) are, like all public personnel

records, subject to the protections of Code § 2.2-3705.1(1).    The
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request for personnel records and for information found therein was

thus appropriately refused by the Department, and this Court

reverses that portion of the order requiring their disclosure.

              B.   Information as to Identities of Persons

     Ewing also requested the identities of all individuals, other

than juveniles, arrested or charged by Officer Shelton or by

another officer based on information supplied by him.    The

Department denied his request, and the circuit court ordered

production.   The Department appeals, arguing that this is a request

for "information," not documents, and therefore exempt from VFOIA.

     Code § 2.2-3706(C) provides that "[i]nformation in the custody

of law-enforcement agencies relative to the identity of any

individual, other than a juvenile, who is arrested and charged, and

the status of the charge or arrest shall be released."    As the

plain language of the statute compels the production of

"information" as to the "identit[ies]" of individuals, the

Department's position that all information requests are per se

exempt from VFOIA is untenable.

     The remaining question for the Court is whether the

"information" requested is subject to disclosure under Code § 2.2-

3706.   The statute does not indicate any impediment to using the

name of the arresting officer paired with a reasonable timeframe as

the vehicle for a request under subsection (C).   The statute thus

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requires the production of Ewing's requested information as to

identities of individuals arrested by Officer Shelton.   The

Department may furnish copies of arrest records or produce the

information via another appropriate format. 2

     Under a plain reading of this statute as a whole, however, it

is clear that the latter portion of Ewing's request – concerning

identities of individuals arrested based on Officer Shelton's

information or observations – seeks information that is exempt from

disclosure.   Subsection (A) of Code § 2.2-3706 specifically

distinguishes "criminal incident information," subject to VFOIA

under the provisions of this section, from "criminal investigative

files," which are exempt under subsections (D) and (F)(1) of the

same statute.   Subsections (D) and (F) specifically exempt

information pertaining to witnesses, criminal investigative

techniques, or criminal investigative files generally.   Arrests

occurring merely on Shelton's "information" or with him serving as

a witness, for which Shelton has not signed or been otherwise

designated as the arresting officer, fall into the category of

criminal investigative files and are exempt under these provisions.




     2
       See Code § 2.2-3704(D) ("Subject to the provisions of
subsection G, no public body shall be required to create a new
record if the record does not already exist. However, a public
body may abstract or summarize information under such terms and
conditions as agreed between the requester and the public body.").
                                  6
     The Court therefore orders the production, via either copies

of original documents or other acceptable format, of identities of

individuals arrested by Officer Shelton but not the identities of

individuals for which he was not the arresting officer, regardless

of information supplied by him or his presence as a witness

relating to those arrests.   As it is unclear from the record of

this case whether arrest warrants signed by Shelton are duplicative

of the Department's previous production of criminal incident

reports responsive to Ewing's first request, the Court orders the

circuit court to ensure production of any non-redundant identity

information in accordance with this order.

                        C.    Attorneys' Fees

     Finally, the Department challenges the award of attorneys'

 fees in this case under Code § 2.2-3713(D), which states:

     The petition shall allege with reasonable specificity the
     circumstances of the denial of the rights and privileges
     conferred by this chapter. A single instance of denial of
     the rights and privileges conferred by this chapter shall
     be sufficient to invoke the remedies granted herein. If
     the court finds the denial to be in violation of the
     provisions of this chapter, the petitioner shall be
     entitled to recover reasonable costs, including costs and
     reasonable fees for expert witnesses, 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. In making this
     determination, a court may consider, among other things,
     the reliance of a public body on an opinion of the
     Attorney General or a decision of a court that
     substantially supports the public body's position.



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     As the determination of "special circumstances" lies in

the sound discretion of the trial court, this issue is remanded

in light of the several holdings in favor of the Department on

this appeal.   The circuit court must reconsider whether to

award attorneys' fees and, if so, the appropriate quantum.

                         III.   Conclusion

     The judgment is accordingly affirmed in part, reversed in

part, and the case is remanded.     This order shall be published

in the Virginia Reports and shall be certified to the said

circuit court.

                          A Copy,

                                Teste:


                                        Patricia L. Harrington, Clerk




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