Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

PAUL C. BLAND                                OPINION BY
                                  SENIOR JUSTICE CHARLES S. RUSSELL
v.   Record No. 051882                     June 8, 2006

VIRGINIA STATE UNIVERSITY

           FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                      Samuel E. Campbell, Judge

        This appeal involves the application of the Virginia

Freedom of Information Act (FOIA), Code § 2.2-3700 et seq.

There are no facts in dispute.

                         Facts and Proceedings

        The Association to Advance Collegiate Schools of Business

(AACSB) is an academic body to which business schools apply

for accreditation.    Seeking accreditation for its business

school by the AACSB, Virginia State University (VSU), an

agency of the Commonwealth, submitted annual reports to that

body.

        Paul C. Bland, a former member of the VSU faculty, by

letter delivered January 31, 2005, requested VSU to provide

him with copies of its annual reports to AACSB for the years

2003 and 2004, pursuant to FOIA.     VSU responded on February 3,

2005, by providing Bland with copies from which information

concerning faculty members identified by name, including Bland

himself, had been redacted.     The response did not invoke any

statutory exemption to justify the redactions, as required by
Code § 2.2-3704(B)(3), but the custodian of the records at VSU

sent an e-mail to Bland on February 7, 2005, referring to Code

§ 2.2-3705.1, which provides, in pertinent part:

     The following records are excluded from the
     provisions of this chapter . . . [p]ersonnel records
     containing information concerning identifiable
     individuals, except that access shall not be denied
     to the person who is the subject thereof.

     Bland, pro se, filed a petition in the trial court

alleging a willful violation of FOIA and requesting production

of documents, mandamus, costs and civil penalties.    The court

heard the matter ore tenus.   At the hearing, VSU produced the

complete, unredacted AACSB reports for the years 2003 and 2004

for the court’s inspection in camera.   Counsel for VSU also

offered to permit Bland to inspect the complete reports at the

hearing, but did not furnish copies or offer them as exhibits

and they were not made a part of the record.1    The hearing

consisted only of the oral arguments of the parties and the

court’s inspection, in camera, of the reports.     No other

evidence was presented.

     At the conclusion of the hearing, the trial court held

that VSU was entitled to invoke the personnel exemption as the

basis for withholding information regarding its employees or

     1
       In oral argument on appeal, counsel for VSU stated that
the reports were returned to him and not delivered to the
clerk of the trial court.



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former employees and that its failure to disclose that

information was not willful.   The court therefore denied

Bland’s claim for civil penalties.    Although the court’s final

order was silent on the subject, the court ruled from the

bench at the hearing that Bland was entitled to any personnel

information regarding Bland himself that was contained in the

reports.   Counsel for VSU agreed to provide Bland with the

originally redacted information that pertained to him.

     Six weeks after the hearing, but before the entry of the

final order, Bland made a motion in the trial court for the

entry of an order requiring VSU to produce the complete 2003

and 2004 AACSB reports in order that they could be made a part

of the record for the purpose of appeal.2    The court denied the

motion and entered a final order.    Thus, the reports that the

court had examined and relied upon to make its decision were

not made a part of the record.

     We awarded Bland an appeal.     He assigned error (1) to the

trial court’s failure to find that VSU had violated the FOIA,

(2) to the trial court’s refusal to permit the record to be



     2
       Bland also asserted in his motion that VSU had provided
him with some, but not all, of the information in the reports
that pertained to him personally. When the motion was argued,
counsel for VSU provided Bland with additional information
from the reports pertaining to Bland. Counsel for VSU stated
that it had been omitted through oversight.



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completed, and (3) to the denial of his constitutional due

process rights.   In the circumstances of this case, the issue

raised by the second assignment of error is dispositive.

                            Analysis

     The exclusion from the record of any evidence that the

trial court has considered in reaching its decision, when the

evidence has been properly tendered for the record by a

litigant, impedes appellate review and constitutes an abuse of

discretion.   An exhibit offered in evidence, whether admitted

or not, becomes a part of the record when initialed by the

trial judge, and not before.   Rule 5:10(a)(3).   The duty of

the trial judge to make up the record in this respect is a

judicial function, and cannot be delegated.    Town of Falls

Church v. Myers, 187 Va. 110, 119, 46 S.E.2d 31, 36 (1948).

An appellate court cannot review the correctness of a trial

court’s decision unless the evidence upon which the trial

court relied is included in the record on appeal.    Packer v.

Hornsby, 221 Va. 117, 121, 267 S.E.2d 140, 142 (1980).

     The lack of such a record precludes our consideration of

Bland’s first assignment of error.     The question whether the

trial court correctly ruled upon the applicability of the

“personnel exemption” to the reports in issue can only be

answered by an inspection of the reports themselves.




                                4
     Bland’s third assignment of error is subsumed by the

second.   His contention that his constitutional rights were

violated is based only upon the trial court’s refusal to

complete the record by including the complete 2003 and 2004

AACSB reports.   Our ruling on the second assignment of error

makes consideration of the constitutional question

unnecessary.   See Volkswagen of America v. Smit, 266 Va. 444,

454, 587 S.E.2d 526, 532 (2003) (constitutional questions will

not be decided if the case can be decided on other grounds);

Keller v. Denny, 232 Va. 512, 516, 352 S.E.2d 327, 329 (1987)

(same).

                            Conclusion

     This appeal illustrates a problem seemingly endemic to

FOIA cases.    Following LeMond v. McElroy, 239 Va. 515, 391

S.E.2d 309 (1990), and Moore v. Maroney, 258 Va. 21, 516

S.E.2d 9 (1999), this is the third appeal of an FOIA decision

in which appellate review has been obstructed by the absence

of the essential record.   As we pointed out in those cases, we

cannot “decide the issue in a vacuum;” we encouraged the

filing of allegedly confidential records for in camera

inspection by the trial court and, if necessary, by an

appellate court.   LeMond, 239 Va. at 520, 391 S.E.2d at 312;

Moore, 258 Va. at 27, 516 S.E.2d at 12.   Concerns of

confidentiality may be met by an order of the trial court


                                 5
directing that the records be kept under seal, a course

suggested by Bland in the present case.

     In LeMond and Moore, the failure to preserve the

essential record was the fault of the litigants.      Because the

responsibility for presenting an adequate appellate record was

upon the appellants seeking reversal of the trial courts’

decisions, we affirmed, without approving, the judgments of

the trial courts in both cases.       LeMond, 239 Va. at 520-21,

391 S.E.2d at 312; Moore, 258 Va. at 27, 516 S.E.2d at 12-13.

Here, by contrast, Bland, the appellant, moved the trial court

to include the essential reports in the record under seal, but

VSU opposed the motion and the trial court denied it.      That

ruling effectively prevented appellate review and was an abuse

of discretion requiring reversal.

     Accordingly, we will reverse the judgment of the trial

court and remand the case for further proceedings consistent

with this opinion, limited to the issue raised by Bland’s

first assignment of error.

                                              Reversed and remanded.




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