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PRESENT: All the Justices
GEORGE H. CHRISTIAN
JUSTICE LEROY F. MILLETTE, JR.
November 4, 2011
Record No. 102477
STATE CORPORATION COMMISSION
FROM THE STATE CORPORATION COMMISSION
The threshold issue in this case is whether the Virginia
Freedom of Information Act (VFOIA) is applicable to the State
Corporation Commission (SCC).
For the reasons that follow, we
conclude that it is not.
On May 13, 2009, George H. Christian submitted two letters
to the Clerk's Office of the SCC requesting information pursuant
to the VFOIA, Code §§ 2.2-3700 through -3714. 1
For the period of
2008, Christian requested a searchable database of SCC
employees, public records listing "all overpayments or unused
payments that the Commission's authority to order a refund has
lapsed," and any complaints or grievances arising therefrom.
In a letter dated May 22, Philip R. de Haas, Deputy
General Counsel – Financial Services of the SCC, responded that
"[w]hile the [VFOIA] does not apply, it is the policy of the
The General Assembly made various amendments to the VFOIA
in 2011. None materially affect the analysis in this case, but
when the language differs from that operative at the time of
Christian's request, we cite to the former Code, as amended,
effective in 2009.
Clerk to provide information and documents upon request to the
extent it is able.
However, your information requests pertain
to data that is not readily available."
He proceeded to direct
Christian to websites that might be helpful in obtaining some,
but not all, of the information which he sought.
On June 22, 2009, Christian filed with the SCC a pro se
"Petition for Temporary Injunction and Petition for Declaratory
Relief," alleging that the Clerk had failed to provide the
requested public records relating to the overpayments or unused
payments and complaints regarding the overpayments or unused
payments for which the Commissioner's authority to order a
refund had lapsed.
Christian's prayer for relief also requested
attorney's fees and costs.
On July 9, the Clerk's Office
produced a single document that it represented was responsive to
The SCC assigned Christian's petition to the Chief Hearing
Examiner, who, after oral argument, filed a report recommending
that the SCC dismiss the petition.
On November 5, 2010, the SCC
entered a Final Order that dismissed the Petition on the grounds
that "no actual controversy exists in this matter given the
Clerk's Office's timely response to the Petitioner's Request for
The SCC also found that because no actual controversy
existed, it was not necessary to address Christian's other
arguments, including whether the VFOIA was applicable to the
Subsequent to the denial of his motion for
reconsideration, Christian appealed to this Court.
In his appeal, Christian designates seventeen assignments
In addition to raising various procedural matters and
objecting to the actions taken by the SCC following his receipt
of the information requested in his petition, Christian argues
that the SCC erred in failing to find the VFOIA applicable to
A. Standard of Review
This Court aptly summarized our role in relation to the SCC
in Northern Virginia Elec. Coop. v. Virginia Elec. & Power Co.,
265 Va. 363, 368, 576 S.E.2d 741, 743-44 (2003):
[T]he Commission's decision "is entitled to the
respect due judgments of a tribunal informed by
experience," and we will not disturb the Commission's
analysis when it is " 'based upon the application of
correct principles of law.' " Lawyers Title Insurance
Corp. v. Norwest Corp., 254 Va. 388, 390-91, 493
S.E.2d 114, 115 (1997) (quoting Swiss Re Life Co. Am.
v. Gross, 253 Va. 139, 144, 479 S.E.2d 857, 860
(1997)). However, the Commission's decision, if based
upon a mistake of law, will be reversed. First
Virginia Bank v. Commonwealth, 213 Va. 349, 351, 193
S.E.2d 4, 5 (1972).
The SCC therefore is entitled to deference as to its findings of
fact and its procedural and evidentiary rulings, while questions
of law, including the applicability of the VFOIA to the SCC,
will be reviewed de novo.
See Level 3 Commc'ns, LLC v. State
Corp. Comm'n, 282 Va. 41, 46, 710 S.E. 2d 474, 477 (2011) (on
appeal, the question of whether SCC properly construed statutes
is subject to de novo review).
While many elements are required to show an actual
controversy, the record makes clear that the specific finding of
the SCC was that the production of the requested documents
rendered the petition moot.
Christian, in objecting to the
report of the Chief Hearing Examiner, emphasized that the SCC’s
response was "in direct violation of the VFOIA, including
delivery well beyond the five-work-day deadline" and added that
a live controversy persisted because he would be entitled to
recover his costs and fees if he prevailed.
At the time of Christian's request, the VFOIA required that
public bodies subject to the Act provide the requested
information or indicate one of the following within five working
days of receipt of the request: (1) that the records are being
entirely withheld, (2) that the records are being partially
provided and partially withheld, (3) that the records could not
be found or do not exist, or (4) that more time is necessary.
Former Code § 2.2-3704(B). 2
If the records are being withheld,
in all or in part, the public body is required to cite with
This section has been amended since Christian's original
petition. The SCC's original response was insufficient under
either version of the statute.
specificity the authorization for such withholding.
The letter response from the SCC indicating
that the requested information was not "readily available" did
not satisfy any of these alternatives as set forth within the
The Act went on to provide that:
If the court finds the denial to be in violation of
the provisions of this chapter, the petitioner shall
be entitled to recover reasonable costs and attorneys'
fees from the public body if the petitioner
substantially prevails on the merits of the case,
unless special circumstances would make an award
Former Code § 2.2-3713 (D).
In Cartwright v. Commonwealth Transportation Commissioner
of Virginia, 270 Va. 58, 613 S.E.2d 449 (2005), we addressed a
similar issue involving late production of documents under the
In Cartwright, we said:
It is true that VDOT provided Cartwright with the
requested sales brochure. However, this action does
not resolve the issue joined in this appeal, that is,
whether a mandamus action brought pursuant to Code
§ 2.2-3713 is barred by the petitioner having an
adequate remedy at law. This is so because, if
Cartwright prevails, the issues whether his petition
for mandamus should have been granted because VDOT
violated the [V]FOIA and, if so, his entitlement to
recover his costs and fees would remain to be resolved
in the circuit court. Thus, the issue raised by this
appeal "is not one in which there is no actual
controversy or in which no relief can be afforded,"
and, consequently, it is not moot.
270 Va. at 63, 613 S.E.2d at 452 (quoting in part RF&P Corp. v.
Little, 247 Va. 309, 315, 440 S.E.2d 908, 912 (1994)).
Likewise, the production of documents in the instant case does
not resolve all of the issues raised in this appeal, namely,
whether Christian is entitled to recover fees and costs under
the VFOIA due to the SCC's insufficient original response. If
Christian were to prevail on the merits, and the VFOIA were
found to be applicable to the SCC, then the SCC would need to
render a determination of appropriate fees and costs under
former Code § 2.2-3713.
Because the production of the requested
records by the SCC would render the issue of fees and costs moot
only if the VFOIA were not applicable to the SCC, we must reject
the SCC's finding that there was no actual controversy.
therefore must address, as an issue of first impression, whether
the VFOIA is applicable to the SCC.
Applicability of the VFOIA
While the VFOIA explicitly exempts certain records of
various government agencies, the SCC is not one of the agencies
specified in the Act's provisions.
Former Code §§ 2.2-3705.1
This list is not exhaustive, however, as
evidenced by the opening sentence of Code § 2.2-3704(A): "Except
as otherwise specifically provided by law, all public records
shall be open to inspection and copying by any citizens of the
Commonwealth. . . ."
(Emphasis added.) 3
The statute does not,
therefore, require that the VFOIA itself be the mechanism of
Accordingly, the absence of a specific exemption for
the SCC is not dispositive as to whether the VFOIA is applicable
to the SCC.
The SCC presents three primary arguments for the
inapplicability of the VFOIA.
Taken together, they offer
compelling evidence that the legislature did not intend the
VFOIA to apply to the SCC.
1. The SCC is governed by a separate
and parallel structure of laws.
First, the SCC argues that a separate and parallel
structure of laws specifically addresses the handling of
information at the SCC.
The SCC points to certain explicit
duties of its Clerk's Office to provide public information
enumerated in Code § 12.1-19(A), as well as statutes providing
for copy costs, (e.g., Code § 12.1-21.1), and confidentiality
provisions, (e.g., Code § 6.2-101), as examples of apparent
conflicts with the VFOIA.
The VFOIA serves as a blanket provision from which public
bodies may claim statutory exceptions.
See Code §§ 2.2-3700(B),
This Court has previously recognized that "the
General Assembly's intent is to 'ensure the people of the
This language appears in both the former and current
versions of Code § 2.2-3704(A).
Commonwealth ready access to records in the custody of a public
body' . . . so as 'to promote an increased awareness by all
persons of governmental activities,' " and that "[t]o effectuate
that intent, the General Assembly has expressly provided that
the provisions of the VFOIA are to be 'liberally construed.' "
Cartwright, 270 Va. at 64, 613 S.E. 2d at 452 (quoting Code
Accordingly, the VFOIA places the onus on the
public body to point to the specific conflicting law offering
shelter from a VFOIA request.
Code § 2.2-3713(E) ("In any
action to enforce the provisions of this chapter, the public
body shall bear the burden of proof to establish an exemption by
a preponderance of the evidence.").
Because of the mandated principles of statutory
construction noted above, the existence of some parallel or even
contradictory statutes applicable to the SCC does not suffice as
proof that the VFOIA is inapplicable to the SCC as a whole.
Indeed, the VFOIA is designed to accommodate public bodies
possessing some information that might need to remain
However, the SCC identifies not a few but at least twentyseven different statutory provisions directing its information
This multitude of provisions supports the SCC's
argument that a separate and parallel structure of laws controls
its information distribution.
Particularly persuasive is the
fact that many of these provisions, such as Code § 12.1-19
(concerning the duties of the clerk), often specifically pertain
to information disclosure.
They therefore serve the same
general purpose as the VFOIA in distributing information,
instead of merely providing exceptions to disclosure in the
interest of confidentiality.
The SCC is not a "public body" under the VFOIA.
Second, the SCC argues that, based on its constitutional
derivation, it is not a public body as defined under the VFOIA.
Christian, however, maintains that it is.
He bases his argument
on a plain-meaning reading of the statute, as the VFOIA includes
the term "commission" in the provision determining venue for
Code § 2.2-3713(A)(3).
We have previously determined that the Commonwealth
Attorney's Office is not a "public body" under the VFOIA
because, "[a]s used in the [V]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," while "a Commonwealth's Attorney derives
his or her authority from the Constitution."
Connell v. Kersey,
262 Va. 154, 161, 547 S.E.2d 228, 231 (2001).
Likewise, the SCC
– authorized under Article IX, § 4 of the Virginia Constitution
– is similarly exempt from the VFOIA.
The VFOIA lacks a constitutional enforcement
mechanism applicable to the SCC.
The SCC's final argument is the most persuasive.
this Court upheld a circuit court ruling that the Code section
of the VFOIA placing jurisdiction over state-wide commissions in
Richmond City Circuit Court was inapplicable to the SCC.
Underwriters, Ltd. v. State Corp. Comm'n, 237 Va. 45, 46-47 375
S.E.2d 733, 734 (1989).
In Atlas, we upheld the circuit court's
refusal to issue a writ of mandamus directing the SCC to provide
official records to Atlas because the writ of mandamus would
have been the "equivalent to the entry of an injunction
restraining the SCC 'in the performance of its official
Id. at 49 (quoting Va. Const. art. IX, § 4).
concluded "that the framers of Article IX, § 4, intended that
[this] Court have exclusive jurisdiction over all challenges to
all actions of the SCC, both judgmental and ministerial."
Christian responds that enforcement is still possible
through a writ of mandamus from this Court.
Yet there is
nothing in the VFOIA to suggest that the language in the
enforcement provision, now Code § 2.2-3713, is anything less
That language states that, in the case of a
complaint against "a board, bureau, commission, authority,
district, institution, or agency of the state government,
including a public institution of higher education, or a
standing or other committee of the General Assembly," venue
"shall" lie with "the general district court or the circuit
court of the residence of the aggrieved party or the City of
Code § 2.2-3713 (emphasis added).
Under our holding
in Atlas, the enforcement provision therefore remains
unconstitutional as applied to the SCC.
Since this Court's ruling in Atlas, the VFOIA has undergone
frequent amendments, including changes to the section in
question, but the Virginia legislature has not seen fit to
modify the enforcement language.
The General Assembly is
presumed to be aware of the decisions of the Court when enacting
Andrews v. Commonwealth, 280 Va. 231, 286, 699
S.E.2d 237, 269 (2010); Dodson v. Potomac Mack Sales & Serv.,
Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180-81 (1991).
in this rare instance, we have evidence of the legislature's
awareness of the issue.
Senate Bill No. 154, relating to
proceedings for enforcement of the VFOIA, was introduced but not
passed in the 1995 legislative session.
It sought to add
language allowing for redress in "the Supreme Court of Virginia
when such rights were denied by the State Corporation
While this Court will not speculate on the reasons
a particular bill was not adopted, the fact remains that both
the current language of the VFOIA and the language operative at
the time of Christian's petition do not provide for enforcement
against the SCC.
The VFOIA therefore is functionally unenforceable against
As the SCC correctly points out, a policy with no
constitutional enforcement provision has no legal weight.
First National Bank in St. Louis v. Missouri, 263 U.S. 640, 660
This issue is dispositive as to applicability.
authority to amend the statute to make it enforceable against
the SCC properly rests with the General Assembly, and this Court
is not empowered to second-guess the legislature's decision not
to modify the statute following our ruling in Atlas.
Had the VFOIA been applicable to the SCC, the late
production of requested documents would not have rendered
Christian's claim moot, given his prayer for recovery of fees
and costs under the VFOIA.
Therefore, an adjudication of the
applicability of the VFOIA to the SCC was a required threshold
For the foregoing reasons, however, this Court finds the
VFOIA inapplicable to the SCC.
This substantive determination
resolves or renders moot all of Christian’s assignments of
We therefore affirm the order of the State Corporation
Commission dismissing Christian's petition.
George Christian filed petitions for temporary injunction and declaratory relief, alleging that the clerk of the State Corporation Commission (SCC) failed to provide requested public records relating to all overpayments or unused payments that the Commission's authority to order a refund had lapsed, and any complaints or grievances arising therefrom. The SCC dismissed the petition, finding (1) no controversy existed given the clerk's timely response to Christian's request for records; and (2) because no controversy existed, it was not necessary to address Christian's other arguments, including whether the Virginia Freedom of Information Act (VFOIA) was applicable to the SCC. The Supreme Court affirmed, holding (1) a live controversy persisted because Christian would be entitled to recover his costs and fees if he prevailed; (2) however, the VFOIA was inapplicable to the SCC; and (3) therefore, Christian's assignments of error were resolved or rendered moot.Receive FREE Daily Opinion Summaries by Email