Virginia: Wrongful Death – a Lawyer’s FOIA

Virginia: Wrongful Death – a Lawyer’s FOIA

On April 16, 2015, the Virginia Supreme Court handed down Fitzgerald v. Loudoun County Sheriff’s Office, No. 141238. It interpreted the Virginia Freedom of Information Act (“FOIA”), Va. Code §2.2-3700, et seq., re a third-party request for a suicide note in a criminal investigative file of a death, affirming denial of the request. Id. at 1, 13.

Fitzgerald held that §2.2-3706(A)(2)(a) “permits, but does not mandate, disclosure of ‘criminal, investigative files’;” that the suicide note therein was subject to the Sheriff’s Office’s discretionary, but not mandatory, disclosure; and that the investigation and file being closed (as a suicide, without any prosecution) did not cause the criminal investigative file to lose “its character as such” and was “inconsequential for purposes of FOIA disclosure principles”. Id. at 8-9. Fitzgerald held further that the “suicide note, standing alone, cannot constitute a compilation [of suicides] under Code §15.2-1722(B),” and thereby was not subject to mandatory disclosure under Va. Code §2.2-3706(B) either. Id. at 9-13.