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 
2

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. 
3

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. 
4

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. 
5

 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 
6

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.