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MOORE, et al. v. MARONEY et al.

MOORE, et al.


MARONEY, et al.

June 11, 1999

Record No. 981872






Charles S. Russell, Judge Designate

Present: All the Justices


The Virginia Freedom of Information Act, Code
Sects. 2.1-340 through -346.1 (the Act), provides that
certain "official records" in the possession of any
employee of a public body are "excluded" from the Act’s
disclosure requirements. Code Sect. 2.1-342(A) and (B).
Among the records excluded are "personnel records containing
information concerning identifiable individuals." Code
Sect. 2.1-342(B)(3). The Act does not define the term
"personnel records."

In August 1997, appellants Bruce Moore and WVEC Television,
Inc., filed a petition for mandamus and injunctive relief against
appellee Ed Maroney, in his official capacity as City Manager for
the City of Newport News, and against appellee Dennis Mook in his
official capacity as the City’s "Interim" Chief of
Police. The defendants filed a demurrer.

Upon consideration of memoranda of law and argument of
counsel, the trial court sustained the demurrer and dismissed the
action in a June 1998 order, which did not state reasons for the
ruling. The plaintiffs did not move to amend the petition and

The sole assignment of error is: "The trial court erred
when it ruled that documents relating to a police investigation
of possible misconduct by a named public official are exempt from
disclosure under [the Act] on the ground that they are personnel
records within the meaning of the Act."

We shall recite the sparse facts contained in this record
according to settled principles of appellate review. A demurrer
admits the truth of all material facts that are properly pleaded.
All reasonable factual inferences fairly and justly drawn from
the allegations must be considered in aid of the pleading. But a
demurrer does not admit the correctness of the pleader’s
conclusions of law. Ward’s Equip., Inc. v. New Holland N.
, 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).

In the petition, the plaintiffs alleged that Moore was
employed by WVEC Television as a news reporter and that the
service area of WVEC included the City of Newport News. The
plaintiffs further alleged that defendants transact public
business and, in the course of their public duties,
"maintain, create and possess certain official records"
relating to the City’s "Codes and Compliance

The plaintiffs also alleged that in May 1997, reporter Moore
sent a letter request under the Act to the City Manager and the
Interim Chief of Police, who "was at that time a custodian
of the documents in question." The letter asked disclosure
of: "Any and all tapes, transcripts, photos and reports
generated by the City’s investigation of possible misconduct by
employees within the Newport News Codes and Compliance
Department." The letter asked that the disclosure include
"all material generated by the surveillance of" a named
former plumbing inspector and another individual not employed by
the City.

The plaintiffs further alleged that defendant City Manager, in
a June letter, refused the request and stated: "’The
information which you have requested constitutes personnel and
medical records of employees of the City of Newport News.
Therefore, pursuant to the provisions of
Sect. 2.1-342(B)(3), I must respectfully decline your
request for copies of these records.’"

The plaintiffs also alleged that the investigation had ended
and all action taken by the City with regard to it had been
completed. Further, they alleged that the named plumbing
inspector "has retired." In addition, the plaintiffs
alleged that "the information requested does not in any way
constitute personnel records and is not contained exclusively in
the personnel files of" the plumbing inspector.

Further, the plaintiffs alleged that the Interim Chief of
Police "is a custodian of the requested documents and is not
a custodian of the personnel files of any employees."
Additionally, plaintiffs alleged that the "exemption"
cited by the City Manager was "not applicable" because
the records are not personnel records.

In their request for relief, the plaintiffs asked for issuance
of a writ of mandamus commanding the defendants to comply with
the Act and to disclose "immediately" the requested
information. The plaintiffs also sought an injunction requiring
defendants to comply with the Act. An affidavit of Moore
corroborating the factual allegations and copies of the letters
were filed with the petition.

On appeal, the plaintiffs, relying upon cases from other
jurisdictions and upon opinions of the Attorney General of
Virginia, contend the trial court’s "holding that a police
investigation of official misconduct would be a part of a public
employee’s personnel record gives a new meaning to the term
‘personnel records.’ In light of the . . . Act’s clear
admonition that it be interpreted to effectuate disclosure and to
minimize the effect of exemptions from disclosure, the lower
court’s interpretation is erroneous."

Continuing, the plaintiffs contend "[i]t is impossible to
conceive or articulate a rationale for holding that a police
investigation of a public employee is a normal part of the
personnel records of that employee. This is especially true
where, as here, the investigation results in the employee’s
retirement rather than disciplinary action, and the investigation
was not internal, but was conducted by a separate public agency.
In fact, the documents were still in the hands of the police
department when the request was filed."

The trial court’s ruling, according to the plaintiffs,
"suggests that, for public employees, a police department
can be equated with a private company’s personnel department, and
that a police investigation is an appropriate evaluative tool for
measuring the performance of public employees. Ruling that police
surveillance tapes showing an official inspector’s misconduct in
the discharge of his professional duties is a typical employee
record stretches the meaning of ‘personnel records’ as that term
is commonly understood."

Responding, defendants note that plaintiffs’ request made
reference only to an investigation of "possible
misconduct" of the City employee, and that the City’s
response said nothing about material related to a criminal
investigation, which is exempt from disclosure under Code
Sect. 2.1-342(B)(1). Thus, "[t]he only reasonable
inference to be drawn from the pleadings," according to
defendants, "is that such investigative material as does
exist relates to misconduct under the City’s standards for
employee conduct, not to crimes."

Under these circumstances, defendants contend, "the
exigencies of local government frequently require police officers
to perform activities only marginally related, at best, to
. . . traditional [police] functions." Defendants
note that the City’s Charter authorizes the City Manager to
assign employees of any department to the temporary performance
of duties in another department. Accordingly, defendants argue,
police participation in an internal investigation in another
municipal department does not alter the nature of the record and
negate its classification as a "personnel record."

We are confronted in this case with a problem similar to the
one that we encountered in LeMond v. McElroy, 239 Va. 515,
391 S.E.2d 309 (1990), another appeal under the Act. There, as
here, we were presented with persuasive arguments on both sides
of the important question presented. Yet, the appellate record
was insufficient, and we refused "to decide the issue in a
vacuum." Id. at 520, 391 S.E.2d at 312.

In order to demonstrate the dilemma, we will summarize the
bare facts alleged in the petition. WVEC is a television station
serving an area that includes the City of Newport News. Moore is
a reporter for WVEC. The City Manager and Interim Chief of Police
are duly appointed public officials who transact public business.
Moore sent a request under the Act to defendants for certain
designated records. The City Manager responded to the request
stating that the requested information constituted
"personnel and medical records" of City employees and
were exempt from disclosure under the Act. The individual who was
the target of the investigation has retired. At the time they
were requested, the records were not contained in the employee’s
personnel file but were in the possession of the Interim Chief of
Police. In this summary, we have disregarded the pleader’s
conclusions of law, such as, "the information requested does
not in any way constitute personnel records"; this is the
ultimate issue of law in the case.

The parties, on brief, have furnished us with additional facts
unsupported by the allegations of the petition for mandamus, the
legal sufficiency of which is tested by the demurrer. For
example, the plaintiffs tell us that "[p]olice investigative
materials such as photos, surveillance tapes, etc., are not a
standard part of a government employee’s personnel file, nor are
these materials normal evaluative tools for public
employees." We do not know from this record what is a
"standard" part of personnel records in the City of
Newport News, and we cannot judicially note that fact.

Likewise, the defendants tell us that "[u]pon receiving
allegations of possible misconduct by a plumbing inspector in
March 1997, the City of Newport News initiated an investigation.
Because the inquiry was deemed to require specialized
investigative skills and equipment, police officers were assigned
to investigate. Before the police chief could forward the results
of the officers’ investigation to the employee’s department head
for his consideration of possible disciplinary action, the
employee elected to retire." These assertions must be
disregarded on demurrer, but they are consistent with our view
that, under certain circumstances, investigative materials
dealing with employee misconduct may indeed be a
"standard" part of employee personnel records. But we
cannot judicially note that fact either.

Moreover, and significantly, we also do not know from the
factual allegations, or inferences flowing therefrom, the precise
nature of the records with which we are dealing. They have been
described in general terms, i.e., "tapes,
transcripts, photos and reports" as well as
"material" generated by surveillance. But we do not
know, for example, whether the reports and surveillance
"material" are addressed only to the supervisor of the
police investigator, in which case they may be purely police
records, or whether they are addressed to the head of the
plumbing inspector’s department, in which case they may indeed be
personnel records.

"Routinely, confidential records are filed for in camera
inspection by a trial court and, if necessary, by an appellate
court." LeMond, 239 Va. at 520, 391 S.E.2d at 312. See
Gloucester County Dep’t of Soc. Serv. v. Kennedy, 256 Va.
400, 403-04, 507 S.E.2d 81, 82-83 (1998) (report of investigation
of alleged child abuse submitted for court’s in camera
review). Here, the plaintiffs made no effort to have the records
at issue produced for examination by the trial court in camera,
a practice that we encouraged in cases of this type in LeMond,
239 Va. at 520, 391 S.E.2d at 312. In LeMond, as here,
there was no evidentiary hearing; counsel for the parties merely
made "factual representations and argument." Id.
at 518, 391 S.E.2d at 311.

Accordingly, we reach the same result here that we reached
under similar circumstances in LeMond. The trial court’s
ruling will stand but without our approval. The judgment will not
be reversed because the responsibility for presenting an adequate
appellate record is upon the appellants who seek reversal of the
decision below. Id. at 520-21, 391 S.E.2d at 312.

Thus, the order appealed from will be Affirmed.

join, dissenting.

This appeal comes to us from an order of the trial court
sustaining the defendants’ demurrer and dismissing the petition
for writ of mandamus. Unlike a motion for summary judgment in
which the trial court decides the merits of a claim, a demurrer
only tests the sufficiency of factual allegations to determine
whether the pleading states a cause of action. Fun v. Virginia
Military Institute
, 245 Va. 249, 252, 427 S.E.2d 181, 183
(1993). To the extent factual matter is in doubt, the doubt must
be resolved in favor of the allegations in the pleading. See
id. at 253, 427 S.E.2d at 183.

In considering a demurrer the trial court is limited to
consideration of the pleadings alone and may determine only
whether the pleadings state a cause of action upon which relief
can be granted. The trial court cannot resolve the merits of the
case or expand the record before it by considering other
evidence. In reviewing the decision of the trial court overruling
or sustaining a demurrer, we are likewise limited to
consideration of the pleadings alone and the facts contained
therein. Id. at 252, 427 S.E.2d at 183.

Applying these principles, I cannot agree with the majority’s
conclusion that the petitioners, appellants here, failed in their
burden to provide a record sufficient for us to review the
decision of the trial court in this case. The record before us,
although slim, contains the petition for a writ of mandamus, the
demurrer, and the trial court’s order granting the demurrer and
dismissing the case. No further record is necessary or proper for
our consideration in resolving the issue presented by this
appeal. In the procedural posture of this case, taking the
allegations in the pleading as true as we must, I conclude that
the petition for a writ of mandamus sufficiently states a claim
upon which relief can be granted.

In order to prevail on a petition for a writ of mandamus to
enforce the provisions of the Freedom of Information Act (FOIA),
the material requested must be an "official record"
maintained by a "public body" that is not exempt from
disclosure under the terms of the Act. See Code
Sects. 2.1-342, -346. In this case, the petition for a writ
of mandamus described the material requested ("tapes,
transcripts, photos and reports generated by the City’s
investigation of possible misconduct by employees" and
"material generated by the surveillance" of a former
employee and a non-employee), identified the public body
maintaining the material sought (the City, the City Manager and
the interim Chief of Police) and asserted that the material
sought was not a personnel record.* Nothing on the
face of the petition flatly contradicts the assertions the
petitioners make with regard to the nature of the material

The respondents argue that because the petitioners describe
the material sought in the petition for writ of mandamus as
relating to "possible misconduct" of employees the
material is personnel records as a matter of law. Since employee
misconduct is a personnel matter, argue respondents, the material
is exempt from disclosure under the FOIA. Considering the
pleadings as a whole, I disagree.

Personnel records are not defined by the FOIA. In the absence
of provisions in the Act which unequivocally make the specific
factual material described in this petition personnel records,
the determination of whether the requested material constitutes
personnel records will require development of a factual record
and examination of such things as the precise nature of the
material sought, the practice of the City with regard to the
material it maintains as personnel records and the application of
the purposes of the FOIA itself. Although, as the majority notes,
both the petitioners and the respondents allege factual matters
relative to these factors in their arguments and briefs, those
factual matters cannot be considered by us in this appeal.

At this stage, it is impossible to say that material described
in the petition as held by city officials and concerning a former
employee and non-employee is personnel records. Thus, as the
majority notes, resolution of the ultimate issue in the case
— whether the material sought is exempt from disclosure
under the personnel records exclusion — requires additional
development of the record. Nevertheless, I cannot conclude that
the appellants-petitioners failed to provide a sufficient record
to determine the issue presented in this appeal, whether the
petition can survive the demurrer filed by the defendants.
Regardless of whether the petitioners might ultimately prevail, I
believe the petition sufficiently alleged a cause of action upon
which relief could be granted.

This conclusion normally would require that the trial court’s
judgment be reversed and the case remanded for further
proceedings. However, the petitioners’ assignment of error and
the arguments put forth under that assignment do not address the
sufficiency of the pleadings. Rather, the petitioners argue the
merits of the case, asserting that the records sought are as a
matter of fact and law not personnel records. The petitioners do
not ask that the case be remanded for further proceedings but
that we conclude that the material requested is not personnel
records and enter an order requiring production of the requested
material. The relief requested by the petitioners, although
within the scope of appellate review when considering a trial
court’s action on a motion for summary judgment, is not available
when reviewing the sustaining of a demurrer. Accordingly, I would
dismiss the appeal as improvidently granted.


* Petitioner’s assertion that the material sought
is not a "personnel record" is a mixed conclusion of
fact and law. Although we are not required to accept bare
conclusions of law on demurrer, we are required to accept
conclusions that turn on the resolution of factual disputes.