Jason Holder—Senior Attorney
In August 2023, Alice Minium filed a Virginia Freedom of Information Act (“FOIA”) request seeking the name, job title, rank, unit or division, gender, race, as well as hiring and compensation information for each deputy employed by the Hanover County Sheriff's Office. Minium v. Hines, 83 Va. App. 643, 647, 911 S.E.2d 822 (2025). In response, Minium received a spreadsheet with the requested information for a fraction of the Office, with the list excluding the names of all deputies below the rank of Captain. Id. at 648. These exclusions, a note explained, were made pursuant to the provision making discretionary the disclosure of “[t]he identity of any victim, witness, or undercover officer, or investigative techniques or procedures.” Va. Code Ann. § 2.2-3706 (B)(10).
Unsatisfied with this response, Minium filed for a writ of mandamus and was met with a supplemental list containing “approximately 25 names including those from the original production but fail[ing] to provide the names of all deputies employed by the County, specifically those below the rank of Captain.” Minium, 83 Va. App. at 648. With this second list, Minium was informed “that the reason for withholding the names of the officers below the rank of Captain was due to staffing concerns for undercover operations based on Code § 2.2-3706(B)(8).” Id.; Va. Code Ann. § 2.2-3706(B)(8) (preventing mandatory disclosure of “[t]hose portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details”).
Still far from the desired information, Minium proceeded to the mandamus hearing at which the trial court concluded that authorities had “properly responded to Minium's request by providing a response in the format that she requested and that the appellees showed by a preponderance of the evidence that they had properly withheld the disputed names under Code § 2.2-3706(B)(8).” Minium, 83 Va. App. at 648. Of particular concern for the trial court was the fact that an individual armed with the requested information could “conduct[] further research, find[] a picture, and publish[] on social media the name and photos of all officers for the department . . . and . . . clearly affect the Sheriff's ability to staff undercover operations.” Id. at 648-49.
On appeal, the court began its analysis by noting that the General Assembly had enacted Virginia’s FOIA “to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees,” id. at 649 (cleaned up), and that “[b]y its own terms, the statute puts the interpretative thumb on the scale in favor of disclosure.” Id. Turning to the County’s argument that the information withheld comprised the “pool of officers available for undercover operations,” id. at 650, the court explained that FOIA offers clear guidance that no provision of the FOIA may be construed to deny public access to the type of information requested, i.e., records of the name, position, job classification, official salary, etc., for “any officer, official, or employee of a public body,” id. at 651 (citing Va. Code Ann. § 2.2-3705.1), and that Code § 2.2-3706(D) “explicitly subjects law enforcement agency personnel records to Code § 2.2-3705.1.” Id. Moreover, a 2017 amendment to the FOIA, enacted after the exceptions relied upon by the County, “specifically provide[s] that it should not be construed to deny public access to the ‘name’ of law enforcement officials.” Id.
The County’s attempt to prevent the disclosures due to the “undercover operations” of Code § 2.2-3706(B)(8) was equally unavailing. As explained by the court, this exception “requires that any records withheld must (1) be related to undercover operations or protective details and (2) reveal staffing, logistics, or tactical plans of those undercover operations.” Id. at 652. Given the breadth of the “related to” factor, the court focused on “whether the information requested ‘would reveal’ details about an undercover operation.” Id. Rejecting the County’s argument that the requested disclosures could hinder any future undercover operations, the court reasoned that “[h]ypothetical future undercover operations, by their very nature as ‘hypothetical,’ are not yet a reality and consequently do not have ‘tactical plans,’ ‘staffing,’ or ‘logistics’ to be disclosed.” Id. at 653. Regarding the possibility of the future assignment of some 220 officers to undercover duty as “merely speculative,” id., the court concluded that the requested disclosure could not be prevented simply because an officer “might be designated for assignment in an undercover operation sometime in the future.” Id. (emphasis in original).
