PRESENT: All the Justices 

BENJAMIN B. FITZGERALD 

 OPINION BY 

v. Record No. 141238 JUSTICE D. ARTHUR KELSEY 

 April 16, 2015 

LOUDOUN COUNTY SHERIFF’S OFFICE 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

J. Howe Brown, Judge 

On appeal, Benjamin B. Fitzgerald contends that the 

circuit court erred in denying his request under the Virginia 

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

to obtain a copy of a suicide note contained in a criminal 

investigative file maintained by the Loudoun County Sheriff's 

Office. Finding no such error, we affirm. 

 I. 

 In October 2007, a neighbor found Charles D. Riechers, a 

senior United States Air Force official, dead at his Loudoun 

County home. Riechers was sitting in his vehicle in a closed 

garage. A key was in the ignition, in the “on” position, but 

the vehicle was not running. A hose appeared to connect the 

vehicle's exhaust pipe to a rear passenger window. 

 Firefighters from the Loudoun County Fire and Rescue 

Department and deputies from the Loudoun County Sheriff’s 

Office responded to the neighbor’s 911 call. The deputies 

immediately secured the area with a yellow crime scene tape and 

started a crime scene access log to record their observations, 

summarize their interviews with witnesses, and inventory their 
 2 

collection of physical evidence. They also conducted a 

security sweep of the home. The deputies then turned the 

incident over to the Criminal Investigations Division of the 

Sheriff’s Office. 

A crime scene investigator managed the initial 

investigation and ordered that the decedent be taken to the 

morgue for an autopsy. A detective in the Sheriff’s Criminal 

Investigations Division coordinated the search of the residence 

after obtaining consent from the decedent’s wife. In the home, 

investigators discovered various evidentiary clues suggesting 

that suicide, rather than homicide, could be the cause of 

death. Among the items of evidence collected was what appeared 

to be a suicide note addressed to the decedent’s supervisor at 

the Pentagon. 

The detective continued to investigate evidentiary leads 

and coordinated his investigation with the United States Air 

Force Office of Special Investigations. The detective also 

reviewed the coroner’s autopsy report, which concluded that the 

decedent did not die from any apparent bodily trauma. After 

receiving the medical examiner’s report, the detective filed 

his final report concluding: “This case is now closed, no 

further investigation is required at this time.” The case file 

was placed among the closed cases of the Criminal 

Investigations Division. 
 3 

In February 2014, Fitzgerald sent a FOIA request to the 

Sheriff’s Office seeking all documents related to the “noncriminal incident report into the suicide of Charles D. 

Riechers” in October 2007. The Custodian of Records for the 

Sheriff’s Office responded by noting that the records sought 

were considered to be part of a criminal investigative file. 

The custodian referred Fitzgerald to Code § 2.2-3706(A)(2)(a) 

and noted that the Sheriff’s Office would not release the file 

absent a court order. 

The Sheriff’s Office later provided to Fitzgerald various 

documents from the criminal investigative file, but withheld 

the suicide note written by the decedent to his supervisor at 

the Pentagon. Fitzgerald filed a petition in general district 

court seeking a mandamus order requiring the production of the 

withheld suicide note. The general district court denied the 

petition, as did the circuit court on a de novo appeal. 

The circuit court made a factual finding that the 

requested document was obtained during a criminal 

investigation. That the investigation did not lead to a 

criminal prosecution, the court reasoned, did not change the 

character of the investigative file from criminal to noncriminal. As the court explained: 

Here, they open[ed] a criminal file and then 

determined that it was a suicide so you want to 

go back and in retrospect say, well, that 

wasn’t a criminal file. It was a criminal file 
 4 

by the definition in the Code and if we start 

saying that we go by what happens later, then I 

think we open a door that isn’t opened by the 

statute and we create some danger to the 

community. So I deny the request. 

The circuit court entered a final order adopting this 

reasoning. We granted Fitzgerald’s petition for appeal to 

determine if the circuit court’s reasoning is consistent with 

the provisions of the FOIA. 

 II. 

 On appeal, Fitzgerald contends that the circuit court 

misapplied FOIA principles. On brief, he requests that we 

reverse and remand with instructions to the circuit court to 

order the Sheriff’s Office “to disclose Mr. Riechers’ letter to 

his business supervisor” at the Pentagon.1

 A. 

 Standards of Appellate Review 

 Our analysis begins, as always, by framing the issues 

before us within the context of the governing standard of 

appellate review. “Under well-established principles, an issue 

of statutory interpretation is a pure question of law which we 

review de novo.” Conyers v. Martial Arts World of Richmond, 

Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). Our de novo 

review takes into account any informative views on the legal 

 

1

 During oral argument on appeal, Fitzgerald’s counsel 

confirmed that the only document he still seeks is this suicide 

note. See Oral Argument Audio at 1:08 to 1:36. 
 5 

meaning of statutory terms offered by those authorized by law 

to provide advisory opinions.2 Even so, in the end, we alone 

shoulder the duty of interpreting statutes because “pure 

statutory interpretation is the prerogative of the judiciary.” 

Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 

S.E.2d 905, 908 (1996). This axiom stems from basic principles 

of separation of powers. “It is emphatically the province and 

duty of the judicial department to say what the law is.” 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 

On the other hand, when the proper construction of a FOIA 

provision establishes a legal standard governing a factfinding 

exercise, we give deference to the circuit court’s findings of 

fact and view the facts on appeal “in the light most favorable 

to the prevailing party.” American Tradition Inst. v. Rector & 

Visitors of the Univ. of Va., 287 Va. 330, 338-39, 756 S.E.2d 

435, 439 (2014) (internal quotation marks and alterations 

omitted). This appellate deference extends not only to the 

circuit court’s resolution of contested evidence, but also to 

all reasonable inferences that may be drawn from that evidence. 

“Where divergent or conflicting inferences reasonably might be 

drawn from established facts their determination is exclusively 

 2

 In this case, we have reviewed the advisory opinions of 

the Virginia Freedom of Information Advisory Council, 

particularly Advisory Op. AO-04 (May 22, 2014) and its 

predecessors. See Code § 30-179(1) (authorizing the Virginia 

Freedom of Information Advisory Council to issue advisory 

opinions). 
 6 

for the fact-finding body.” Hopson v. Hungerford Coal Co., 187 

Va. 299, 308, 46 S.E.2d 392, 396 (1948). 

 B. 

 Virginia Freedom of Information Act 

 The Virginia FOIA “has existed, in one form or another, 

since 1968” with the primary purpose of facilitating “openness 

in the administration of government.” American Tradition 

Inst., 287 Va. at 339, 756 S.E.2d at 439-40. By its own terms, 

the statute puts the interpretative thumb on the scale in favor 

of disclosure: “The provisions of [FOIA] shall be liberally 

construed to promote an increased awareness by all persons of 

governmental activities and afford every opportunity to 

citizens to witness the operations of government.” Code § 2.2-

3700(B). Disclosure exemptions must be “narrowly construed” in 

favor of disclosure. Id. 

Fitzgerald argues on appeal that this laudable statutory 

bias in favor of disclosure requires that we construe the FOIA 

to mandate that the Sheriff’s Office disclose a suicide note, 

which was discovered during an ongoing criminal investigation. 

Like the circuit court, we do not believe that the statutory 

language can bear the weight of Fitzgerald’s argument. 

Code § 2.2-3706 governs the disclosure of criminal 

records. Subsection (A)(1) requires disclosure of certain 

specific information, including “[c]riminal incident 

information.” Certain types of criminal records not required 
 7 

to be produced under subsection (A)(1) “may be disclosed” under 

subsection (A)(2) at the discretion of the custodian, if no 

other law forbids disclosure. “Criminal investigative files” 

are among the categories of records subject to the 

“[d]iscretionary releases” provisions of subsection (A)(2). 

Code § 2.2-3706(B) governs the mandatory disclosure of 

“[n]oncriminal records.” Among other things, these records 

include those “required to be maintained by law-enforcement 

agencies pursuant to [Code] § 15.2-1722.” Code § 2.2-3706(B). 

A records-retention statute outside the text of FOIA, Code 

§ 15.2-1722(A), requires sheriffs and police chiefs to maintain 

“adequate personnel, arrest, investigative, reportable 

incidents, and noncriminal incidents records necessary for the 

efficient operation of a law-enforcement agency.” The failure 

to do so “shall constitute a misdemeanor.” Id. Subsection (B) 

of Code § 15.2-1722 defines “[n]oncriminal incidents records” 

as “compilations of noncriminal occurrences of general interest 

to law-enforcement agencies, such as missing persons, lost and 

found property, suicides and accidental deaths.” 

 1. Criminal Investigative Files 

The proper sequencing of these provisions begins with an 

examination of Code § 2.2-3706(A)(1)(a), which requires 

disclosure of certain specified “[c]riminal incident 

information.” Fitzgerald properly concedes that the requested 
 8 

suicide note does not fall within this mandatory disclosure 

provision. 

We next look to subsection (A)(2)(a), which permits, but 

does not mandate, disclosure of “[c]riminal investigative 

files.” Sitting as factfinder, the circuit court found that 

the requested suicide note was one of many documents in a 

criminal investigative file protected from mandatory disclosure 

by Code § 2.2-3706(A)(2)(a). At no point did Fitzgerald 

suggest, nor did any evidence imply, that the Sheriff’s Office 

acted outside its lawful authority in opening a criminal 

investigative file to investigate the unexpected and unattended 

death of a senior United States Air Force official. The 

Sheriff’s Office thus had the discretion, but not the duty, to 

disclose documents within this file. 

Even so, Fitzgerald argues, the criminal investigative 

file lost its character as such when the file was closed by the 

Criminal Investigations Division of the Sheriff’s Office. We 

find nothing in the statutory text or in its legislative 

context to support this counterintuitive conclusion. 

Suffice it to say, the point of a criminal investigation 

is to investigate — to determine whether a crime occurred and, 

if so, who perpetrated it. A criminal investigation may or may 

not lead to a prosecution. But that does not mean that the 

application of FOIA disclosure requirements is dependent upon 

the outcome of the investigation. In this case, investigators 
 9 

discovered the suicide note during an ongoing criminal 

investigation. That the investigation was later closed is 

inconsequential for purposes of FOIA disclosure principles. 

 2. Noncriminal Records 

Fitzgerald next relies upon Code § 2.2-3706(B), which 

requires the mandatory release of certain records, including 

those “required to be maintained by law-enforcement agencies 

pursuant to [Code] § 15.2-1722.” As noted earlier, this nonFOIA records-retention statute requires sheriffs and police 

chiefs to maintain “adequate personnel, arrest, investigative, 

reportable incidents, and noncriminal incidents records 

necessary for the efficient operation of a law-enforcement 

agency.” Code § 15.2-1722(A). According to Fitzgerald, 

documents related to a suicide (including the decedent’s 

suicide note) should be considered “noncriminal incidents 

records” subject to disclosure under Code § 15.2-1722. 

We first address the assumption underlying Fitzgerald’s 

argument. He seeks a broad construction of Code § 15.2-1722 on 

the ground that the General Assembly has prescribed that the 

“provisions” of the FOIA “shall be liberally construed” in 

favor of disclosure. Appellant’s Brief at 18-19 (quoting Code 

§ 2.2-3700(B)). We find this argument problematic for several 

reasons. 
 10 

Code § 15.2-1722 is incorporated by reference in the FOIA 

but is not codified as a stand-alone provision of the FOIA. 

That seemingly semantic point unmasks a distinction with a 

significant difference. Code § 15.2-1722 is a recordsretention statute that carries a criminal sanction. If there 

were any textual ambiguities in Code § 15.2-1722, the rule of 

lenity would direct us to adopt a narrow construction, thus 

reducing exposure to criminal liability. That necessarily 

narrow construction would run contrary to the broad 

construction required by the FOIA, which expands the scope of 

disclosure.3 We need not resolve this conundrum, however, 

because Code § 15.2-1722 has a plain meaning inconsistent with 

Fitzgerald’s interpretation. 

Subsection (B) of Code § 15.2-1722 defines “[n]oncriminal 

incidents records” as “compilations of noncriminal occurrences 

 3

 Only when a “penal statute is unclear” do Virginia courts 

apply the rule of lenity and strictly construe the statute in 

the criminal defendant’s favor. Waldrop v. Commonwealth, 255 

Va. 210, 214, 495 S.E.2d 822, 825 (1998) (footnote 

omitted); see also Holsapple v. Commonwealth, 266 Va. 593, 598, 

587 S.E.2d 561, 564 (2003) (“We do not agree that the statutory 

language is ambiguous. Hence, we construe the language 

according to its plain meaning without resort to rules of 

statutory interpretation.”). The rule of lenity serves only to 

resolve genuine ambiguities and “does not abrogate the well 

recognized canon that a statute . . . should be read and 

applied so as to accord with the purpose intended and attain 

the objects desired if that may be accomplished without doing 

harm to its language.” Cartwright v. Commonwealth, 223 Va. 

368, 372, 288 S.E.2d 491, 493 (1982) (omission in original) 

(quoting Gough v. Shaner, 197 Va. 572, 575, 90 S.E.2d 171, 174 

(1955)). 
 11 

of general interest to law-enforcement agencies, such as 

missing persons, lost and found property, suicides and 

accidental deaths.” In ordinary terms, a compilation is 

something that has been compiled. See generally Webster’s 

Third New International Dictionary 464 (2002) (defining 

“[c]ompilation” as “the act or action of gathering together 

written material esp. from various sources” or “something that 

is the product of the putting together of two or more items”). 

A compilation of poems, for example, is a collection of 

different poems.4 It is not a single poem or even a collection 

of background materials related to a single poem. 

The suicide note, standing alone, cannot constitute a 

compilation under Code § 15.2-1722(B). The pertinent language 

requires that “compilations of noncriminal occurrences” be 

maintained and lists suicides as an example of such 

occurrences. Code § 15.2-1722(B). A compilation of suicides 

is a record of more than one suicide. The suicide note may be 

a compilation of words, but not a compilation of suicides. 

We similarly reject the assertion that the entire criminal 

investigative file maintained by the Sheriff’s Office could be 

 4

 See Black’s Law Dictionary 344 (10th ed. 2014) (defining 

“compilation” in the context of copyright law as “[a] 

collection of literary works arranged in an original way”); 

accord 17 U.S.C. § 101 (2014) (defining “compilation” as “a 

work formed by the collection and assembling of preexisting 

materials or of data that are selected, coordinated, or 

arranged in such a way that the resulting work as a whole 

constitutes an original work of authorship”). 
 12 

deemed a compilation of suicide records. Code § 15.2-1722(B) 

addresses “[n]oncriminal incidents records,” specifically 

defined as "compilations of noncriminal occurrences . . . such 

as . . . suicides." (Emphasis added.) A file containing 

reports concerning a single incident, later determined to be a 

suicide, is not a compiled collection of information concerning 

multiple suicides. The criminal investigative file in this 

case — protected against mandatory disclosure by Code § 2.2-

3706(A)(2)(a) — did not become, and never was, a compilation of 

suicides. 

Nothing in our reasoning, however, implies that a 

compilation can only be a spreadsheet of raw data points or 

statistics. Although it can certainly be that, the statutory 

meaning of compilation is not necessarily so limited. In Tull 

v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998), for example, we 

treated a 911 tape recording of multiple channels of radio 

traffic and telephone calls as a 

grouping of electronically gathered information 

and thus a “compilation.” The tape at issue in 

this case is not just a recording of the 

conversation between the 911 caller and the 

dispatcher. Rather, it is a recording on 

multiple channels of all radio traffic handled 

through the . . . dispatch office in addition 

to conversations occurring on . . . four 

telephone lines and conversations between 

individuals physically in the dispatcher’s 

office. In short, all activity occurring in 

the dispatch office as well as that on the four 

telephone lines is compiled on this tape. 
 13 

Id. at 184, 494 S.E.2d at 858-59. In Tull, the 911 tape 

aggregated voice data from multiple sources (radio and 

telephonic) into a single audio record. It was this gathering 

of the many into one that made it a compilation.5

For these reasons, both the text and the syntax of Code 

§ 15.2-1722(B) render Fitzgerald’s interpretation of it 

implausible. Neither the suicide note requested by Fitzgerald 

nor the investigative file in its entirety was a compilation of 

records of multiple suicides. The circuit court, therefore, 

correctly rejected Code § 15.2-1722(B) as a basis for ordering 

the disclosure of the suicide note contained in the criminal 

investigative file. 

 III. 

 In sum, the record supports the circuit court’s finding 

that the suicide note was obtained in the course of a criminal 

investigation. Finding no error in the circuit court’s 

application of the governing statutes, we affirm. 

Affirmed. 

 5

 The reasoning in Tull that the 911 tape was a compilation 

led to the conclusion that the tape need not be disclosed under 

former Code § 15.1-135.1. That statute provided that “records 

required to be maintained by this section shall be exempt” from 

the FOIA. Former Code § 15.1-135.1(A) (1989 Repl. Vol.). The 

General Assembly repealed former Code § 15.1-135.1 in 1997 and 

reenacted it without the FOIA exemption, recodifying it as Code 

§ 15.2-1722. See 1997 Va. Acts ch. 587. In 1999, the 

legislature added the records kept pursuant to Code § 15.2-1722 

to the mandatory disclosure requirements of former Code § 

2.1-342.2, the precursor to Code § 2.2-3706(B). See 1999 Va. 

Acts chs. 703, 726.