Present: All the Justices 

JAMES G. CONNELL, III 

 OPINION BY 

v. Record No. 001729 JUSTICE LAWRENCE L. KOONTZ, JR. 

June 8, 2001 

ANDREW KERSEY 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

In this appeal, we consider whether the trial court 

properly sustained a demurrer to a petition for writ of 

mandamus. The petitioner had sought to compel a Commonwealth’s 

Attorney to produce records related to an ongoing criminal 

investigation or prosecution, asserting that the records were 

subject to disclosure under The Virginia Freedom of Information 

Act, Code § 2.1-340, et seq. (FOIA). 

BACKGROUND 

The parties do not dispute the principal facts. James G. 

Connell, III, a resident of Virginia and an attorney-at-law 

serving as an Assistant Public Defender in Fairfax County, 

represents Ahmed Jamal Shireh in a felony criminal case being 

prosecuted by Fairfax County Assistant Commonwealth’s Attorney 

Andrew Kersey. Connell became aware that Kersey was in 

possession of one or more police reports containing criminal 

incident information regarding Shireh’s alleged crime. 
On April 17, 2000, Connell requested in a letter that 

Kersey “send [Connell] any and all personnel, arrest, 

investigative, reportable incidents, and noncriminal incident 

records, as defined by Code § 15.2-1722, as well as any other 

records containing criminal incident information, as defined in 

Code § 2.1-342.2” related to Shireh’s alleged crime. (Emphasis 

added). Copies of the letter were sent by certified mail and 

hand delivered to Kersey. 

Upon receipt of Connell’s letter, Kersey telephoned Connell 

and advised him that, in Kersey’s opinion, the records Connell 

sought were not subject to disclosure during an ongoing criminal 

investigation or prosecution. According to Kersey, Connell 

conceded during the telephone conversation that he was unaware 

of any legal authority that supported his interpretation of the 

FOIA, but insisted that Code § 2.1-342.2 nonetheless required 

disclosure of the requested records. Kersey disagreed and 

declined to provide the records. 

On April 28, 2000, Connell, through retained counsel, 

advised Kersey that, in Connell’s opinion, Kersey’s failure to 

“respond[] as required by the [FOIA]” was a violation of the 

FOIA, and again requested that Kersey forward “records relating 

to the case of Commonwealth v. Ahmed Shireh” to Connell in order 

“to dispose of this matter without litigation.” (Emphasis 

added). Connell indicated that if Kersey failed to produce the 

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requested records, Connell was prepared to file a petition for 

writ of mandamus to have the records produced and that he would 

seek “civil penalties against [Kersey] in [his] individual 

capacity.” 

On May 2, 2000, Kersey wrote a letter to Connell’s counsel 

again asserting that the records sought were not subject to 

disclosure under express exemptions within the FOIA. Kersey 

further noted that Connell’s “threat to seek civil penalties 

against [Kersey] is unfortunate and inappropriate.” Kersey 

indicated his belief that the proposed petition for writ of 

mandamus was “utterly meritless and unwarranted by law” and 

cautioned that he might seek sanctions against Connell’s counsel 

if he chose to proceed with the threatened litigation. 

On May 5, 2000, Connell’s counsel responded to Kersey’s May 

2, 2000 letter by again disputing Kersey’s interpretation of the 

FOIA. Connell’s counsel contended that the FOIA required Kersey 

to produce “criminal incident information,” as requested by 

Connell. (Emphasis added). Connell’s counsel further contended 

in this letter that Kersey’s “continued refusal to provide the 

requested information . . . only aggravates your violation of 

the [FOIA’s] requirements and strengthens our claim for civil 

penalties.” 

On May 8, 2000, Kersey replied to the May 5, 2000 letter, 

indicating that he believed the request for “ ‘criminal incident 

3
information’ . . . represents a change from Mr. Connell’s 

original letter to me and both your [April 28, 2000] letter and 

proposed Petition for Writ of Mandamus which demand [records] 

that contain ‘criminal incident information.’ ” Kersey conceded 

that Connell was entitled to request “criminal incident 

information,” but not to receive the original records from which 

the information was compiled. In the letter, Kersey provided a 

summary of the criminal incident information related to the 

arrest and prosecution of Shireh. 

On May 9, 2000, Connell filed a petition for writ of 

mandamus seeking an order directing Kersey to produce “all 

documents” within his control containing criminal incident 

information relating to the arrest and prosecution of Shireh 

that were subject to disclosure pursuant to Code § 2.1-342.2. 

Connell also sought attorney’s fees and costs and requested that 

the trial court impose “a civil penalty of not less than $100 

nor more than $1,000” against Kersey. In a supporting 

memorandum, Connell asserted that the FOIA required the 

Commonwealth’s Attorney to produce copies of the original 

records containing criminal incident information, and not merely 

a summary of these records. Connell further asserted that the 

requested sanction was appropriate under Code § 2.1-346.1, which 

provides for civil penalties “against members of public bodies” 

for willful and knowing violations of the FOIA. Connell 

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contended that among other evidence of Kersey’s willful and 

knowing violation of the FOIA was his failure to respond to 

Connell’s original request within the time and under the 

procedures required by Code § 2.1-342. 

On May 17, 2000, Kersey filed a demurrer to the petition 

for writ of mandamus with a supporting brief.1 Kersey again 

asserted that the records originally requested by Connell were 

exempt from disclosure under Code § 2.1-342.2, and that he had 

supplied criminal incident information sufficient to satisfy the 

requirements of that code section. With respect to the 

allegations of his failure to comply with Code § 2.1-342 and the 

request for a civil penalty, Kersey noted that the provisions of 

the FOIA relied upon by Connell related to requests made to 

“public bodies.” Kersey asserted that the Commonwealth’s 

Attorney was not a member of a “public body” subject to the 

provisions of the FOIA cited by Connell. Kersey also filed an 

answer and grounds of defense to the petition for writ of 

mandamus. 

 

1

 Kersey also filed a plea in bar asserting that Connell’s 

request was made on behalf of Shireh, who was incarcerated in 

the Fairfax County Adult Detention Center. Kersey contended 

that Code § 2.1-342.01(C) barred incarcerated persons from 

exercising the rights afforded by the FOIA. The trial court 

overruled the plea in bar, and Kersey has not assigned crosserror to that action. Accordingly, we express no opinion on 

this issue. 

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On May 19, 2000, the trial court heard argument from the 

parties on Kersey’s demurrer. During that hearing, and in a 

responding brief filed that same day, Connell contended that the 

Commonwealth’s Attorney, “whose office operations are wholly 

supported by public funds,” is a “public body” as defined in 

Code § 2.1-341, and that Kersey, as an Assistant Commonwealth’s 

Attorney, is a member of that public body. He further contended 

that Kersey’s failure to comply with the procedures of Code 

§ 2.1-342 constituted a waiver of any exemptions within the 

statute, that the exemptions asserted by Kersey were in any case 

not applicable to the records he had requested, and that the 

disclosure of criminal incident information in summary form was 

insufficient to satisfy the requirements of Code § 2.1-342.2. 

Citing Code § 2.1-342(D), Connell contended that the summary 

information provided by Kersey constituted a “new record” that 

could not be substituted for existing records unless Connell 

agreed to accept the summary. 

In a letter opinion dated May 23, 2000, the trial court 

first ruled that Connell was entitled to request “criminal 

incident information” pursuant to Code § 2.1-342.2. The trial 

court further ruled that, as defined by the statute, “criminal 

incident information . . . is not synonymous with a ‘public 

record’ as defined in Code § 2.1-341.” Thus, the trial court 

concluded that Kersey was not required to obtain Connell’s 

6
agreement before supplying a summary, rather than original 

records, in response to a request under Code § 2.1-342.2. 

The trial court further ruled that the Commonwealth’s 

Attorney’s office was not a public body as defined by the FOIA. 

Accordingly, the trial court concluded that the procedural 

provisions of Code § 2.1-342 did not apply to Connell’s request, 

nor was Kersey subject to the penalty provisions of Code § 2.1-

346.1. 

Based upon these rulings, the trial court ruled that Kersey 

had complied with the requirements of Code § 2.1-342.2 by 

supplying Connell with criminal incident information in summary 

form within a reasonable time. On July 10, 2000, the trial 

court entered an order incorporating by reference the reasoning 

of its letter opinion and sustaining Kersey’s demurrer to 

Connell’s petition for writ of mandamus. By an order dated 

October 31, 2000, we awarded Connell this appeal. 

DISCUSSION 

Connell assigns error to the trial court’s determination 

that the Commonwealth’s Attorney is not a “public body” within 

the meaning of the FOIA and, thus, is not subject to the 

requirements of Code § 2.1-342. Connell further assigns error 

to the trial court’s ruling that Code § 2.1-342.2 permits the 

Commonwealth’s Attorney to provide “criminal incident 

information” in summary form rather than through the production 

7
of the original records containing that information. We will 

address these issues seriatim. 

The policy underlying the FOIA and its rules of 

construction are set forth in Code § 2.1-340.1: 

By enacting this chapter the General Assembly 

ensures the people of this Commonwealth ready access 

to records in the custody of public officials and free 

entry to meetings of public bodies wherein the 

business of the people is being conducted. 

. . . . 

This chapter 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. 

Any exception or exemption from applicability shall be 

narrowly construed in order that no thing which should 

be public may be hidden from any person. 

. . . . 

All public bodies and public officials shall make 

reasonable efforts to reach an agreement with a 

requester concerning the production of the records 

requested. 

In considering the application of the FOIA in various 

circumstances, we have not heretofore been called upon to 

determine whether constitutional officers, such as a 

Commonwealth’s Attorney, are “public bodies” within the meaning 

of the FOIA. See, e.g., Tull v. Brown, 255 Va. 177, 181, 494 

S.E.2d 855, 857 (1998) (sheriff’s contention that his office was 

not a “public body” was rendered moot by his stipulation that he 

was a “public official”). Contrary to Connell’s contention made 

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on brief and during oral argument of this appeal, Tull does not 

stand for the principle that public officials, such as 

constitutional officers, are “public bodies” for purposes of 

applying the FOIA. 

In addition to any “legislative body” and various specified 

governmental entities, Code § 2.1-341 defines a “Public body” as 

“any authority . . . or agency of the Commonwealth or of any 

political subdivision of the Commonwealth . . . supported wholly 

or principally by public funds.” Connell contends that a 

Commonwealth’s Attorney, whose office is clearly supported by 

public funds, is both an “authority” and an “agency” of the 

Commonwealth and of the locality in which he or she is elected. 

We disagree. 

As used in the FOIA, the terms “authority” and “agency” 

clearly refer to entities to which responsibility to conduct the 

business of the people is delegated by legislative or executive 

action. By contrast, a Commonwealth’s Attorney derives his or 

her authority from the Constitution. Va. Const. art. VII, § 4. 

A Commonwealth’s Attorney, like a sheriff or other 

constitutional officer, is undoubtedly a public official, Tull, 

255 Va. at 183, 494 S.E.2d 858, but the FOIA distinguishes 

between “public officials” and “public bodies” in several 

instances. Indeed, Code § 2.1-340.1 refers to “public body or 

public official,” clearly indicating that the terms are not 

9
synonymous. Essentially, a public body conducts “meetings” 

involving the business of the public, whereas a public official 

may or may not conduct such public meetings. See, e.g., Code 

§ 2.1-342.01; Code § 2.1-343. A Commonwealth’s Attorney, in the 

prosecution of a criminal offense, is not conducting a public 

meeting; it is the trial related to that offense that is open to 

the public. 

Moreover, Code § 2.1-342.2(A) includes an express provision 

that the term “Law-enforcement official,” as used in that code 

section, “includes the attorneys for the Commonwealth.” If the 

legislature had intended for Commonwealth’s Attorneys, and their 

offices, to be treated as public bodies under the general 

definitions in Code § 2.1-341, this express inclusion of 

Commonwealth’s Attorneys in Code § 2.1-342.2(A) would have been 

unnecessary. 

Accordingly, we hold that the trial court did not err in 

concluding that a Commonwealth’s Attorney is not a “public body” 

within the meaning of the FOIA.2 Thus, Connell’s request for 

 

2

 We permitted The Reporters Committee for Freedom of the 

Press and the Virginia Coalition for Open Government to file a 

brief as amici curiae in support of Connell. On brief, the 

amici assert that their “interest here is in preserving public 

access to government documents . . . [which] permits the public 

to learn how their tax dollars are spent, to benefit from 

information in government custody, and to hold government 

officials accountable for their work.” We share the concern 

expressed by the amici, and note that, contrary to the view 

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criminal incident information pursuant to Code § 2.1-342.2 was 

not subject to the procedures and time limits prescribed by Code 

§ 2.1-342, which by its express terms relates only to requests 

made under the FOIA to “public bodies.” 

We turn now to the remaining issue whether Code § 2.1-342.2 

permits the Commonwealth’s Attorney to provide criminal incident 

information to the requester in summary form rather than to 

provide the original records containing that information. 

Connell contends that because he specifically relied upon both 

Code § 2.1-342.2(B) and Code § 2.1-342.2(G) in making his 

request, he was entitled to the original records and not merely 

the summary of these records that he received from Kersey. We 

disagree. 

Code § 2.1-342.2(A) defines “Criminal incident information” 

to mean “a general description of the criminal activity 

reported, the date and general location the alleged crime was 

committed, the identity of the investigating officer, and a 

 

stated in their brief, the trial court did not rule that 

constitutional officers and other public officials were wholly 

exempt from the provisions of the FOIA. The trial court’s 

ruling was limited to the application of the FOIA to 

Commonwealth’s Attorneys under the circumstances of this case. 

Similarly, our holding should not be interpreted as placing any 

restriction on the application of the FOIA to public officials 

and their offices beyond the narrow focus of this opinion as it 

relates to FOIA requests made to a Commonwealth’s Attorney for 

records related to ongoing criminal investigations or 

prosecutions. 

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general description of any injuries suffered or property damaged 

or stolen.” (Emphasis added). In addition, as previously noted 

this statute provides that the term “Law-enforcement official” 

includes a Commonwealth’s Attorney. Subsection (B) provides 

that law-enforcement officials, such as the Commonwealth’s 

Attorney, “shall make available upon request criminal incident 

information relating to felony offenses” subject to the 

limitation that this information may be withheld where its 

release is likely to jeopardize or hamper certain legitimate 

interests regarding the ongoing investigation or prosecution of 

a particular case. The following subsections of Code § 2.1-

342.2 address more specific data, information, or reports and, 

in some instances, mandate the release of certain information, 

prohibit the release of other information, and make the release 

of still other information discretionary. See Code § 2.1-

342.2(C)-(F). 

Subsection (G) provides that “[r]ecords kept by lawenforcement agencies as required by § 15.2-1722 shall be subject 

to the provisions” of the FOIA with certain specified exceptions 

not pertinent to our present analysis. Code § 15.2-1722 

requires “the sheriff or chief of police of every locality” to 

maintain certain records “necessary for the efficient operation 

of a law-enforcement agency.” The statute makes the failure of 

a sheriff or chief of police to maintain these records a 

12
misdemeanor offense and places the duty to enforce this code 

section on “the attorney for the Commonwealth.” 

Significantly, both subsection (G) of Code § 2.1-342.2 and 

Code § 15.2-1722 specifically refer to law-enforcement 

“agencies” and not law-enforcement “official[s],” the term found 

in Code § 2.1-342.2(A). Because the General Assembly 

specifically included a Commonwealth’s Attorney within the 

definition of law-enforcement official, we are of opinion that 

it did not intend to include a Commonwealth’s Attorney within 

the provisions of subsection (G). In this context, there is no 

merit to Connell’s generalized assertion that a Commonwealth’s 

Attorney comes within the term “law-enforcement agencies” 

because he or she is an agent of the Commonwealth for purposes 

of a request for information under the FOIA. Thus, Code § 2.1-

342.2(B) controls our analysis, and we are of opinion that the 

disclosure of a summary of the original records is consistent 

with the requirement that the Commonwealth’s Attorney provide 

the requester with a general description of the criminal 

activity reported therein including the date and general 

location the alleged crime was committed, the identity of the 

investigating officer, and a general description of any injuries 

suffered or property damaged or stolen. 

Accordingly, we hold that Code § 2.1-342.2 does not require 

a Commonwealth’s Attorney’s office or other law enforcement 

13
official to release actual records relating to a criminal 

incident, but only to provide a summary of the information 

available from the specified records subject to any mandatory or 

discretionary exemptions provided for in the statute. Thus, the 

trial court did not err in ruling that Kersey’s provision of 

summary criminal incident information within a reasonable amount 

of time satisfied the requirements of the FOIA with respect to 

Connell’s request. 

CONCLUSION 

For these reasons, we hold that the trial court did not err 

in sustaining Kersey’s demurrer to Connell’s petition for writ 

of mandamus. Accordingly, the judgment of the trial court will 

be affirmed. 

Affirmed. 

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