Christian v. State Corp. Comm'n

• Decision Date: 04 November 2011
• Docket Number: Record No. 102477.
• Citation: 718 S.E.2d 767,282 Va. 392
• Parties: George H. CHRISTIAN v. STATE CORPORATION COMMISSION.
• Court: Virginia Supreme Court

282 Va. 392

718 S.E.2d 767

George H. CHRISTIAN

v.STATE CORPORATION COMMISSION.

Record No. 102477.

Supreme Court of Virginia.

Nov. 4, 2011.

West Codenotes

Unconstitutional as Applied

West's V.C.A. § 2.2–3713

George H. Christian, pro se.

Scott A. White, Senior Counsel (C. Maureen Stinger, Associate General Counsel; Philip R. de Haas, on brief), for appellee.

Present: All the Justices.

Opinion By Justice LEROY F. MILLETTE, JR.

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.

I. BACKGROUND

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. ( Id.) 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 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 Christian's petition.

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 records.” 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 SCC. ( Id.) Subsequent to the denial of his motion for reconsideration, Christian appealed to this Court.

In his appeal, Christian designates seventeen assignments of error. 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 the SCC.

II. DISCUSSION

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).

B. Actual Controversy

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 specificity the authorization for such withholding. Former Code § 2.2–3704(B)(1). 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 statute.

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 unjust.

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 VFOIA. 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. We therefore must address, as an issue of first impression, whether the VFOIA is applicable to the SCC.

C. 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 through –3705.7. 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 exemption. 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), 2.2–3713(E). This Court has previously recognized that “the General Assembly's intent is to ‘ensure [ ] the people of the 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 § 2.2–3700(B)). Accordingly, the VFOIA places the onus on the public body to...