Bland v. Virginia State University

Present: 	Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
PAUL C. BLAND 	OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. 	Record No. 051882 	June 8, 2006
VIRGINIA STATE UNIVERSITY
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Samuel E. Campbell, Judge
This appeal involves the application of the Virginia
Freedom of Information Act (FOIA), Code § 2.2-3700 et seq.
There are no facts in dispute.
Facts and Proceedings
The Association to Advance Collegiate Schools of Business
(AACSB) is an academic body to which business schools apply
for accreditation. 	Seeking accreditation for its business
school by the AACSB, Virginia State University (VSU), an
agency of the Commonwealth, submitted annual reports to that
body.
Paul C. Bland, a former member of the VSU faculty, by
letter delivered January 31, 2005, requested VSU to provide
him with copies of its annual reports to AACSB for the years
2003 and 2004, pursuant to FOIA. 	VSU responded on February 3,
2005, by providing Bland with copies from which information
concerning faculty members identified by name, including Bland
himself, had been redacted. 	The response did not invoke any
statutory exemption to justify the redactions, as required by

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Code § 2.2-3704(B)(3), but the custodian of the records at VSU
sent an e-mail to Bland on February 7, 2005, referring to Code
§ 2.2-3705.1, which provides, in pertinent part:
The following records are excluded from the
provisions of this chapter . . . [p]ersonnel records
containing information concerning identifiable
individuals, except that access shall not be denied
to the person who is the subject thereof.
Bland, pro se, filed a petition in the trial court
alleging a willful violation of FOIA and requesting production
of documents, mandamus, costs and civil penalties. 	The court
heard the matter ore tenus. 	At the hearing, VSU produced the
complete, unredacted AACSB reports for the years 2003 and 2004
for the court’s inspection in camera. 	Counsel for VSU also
offered to permit Bland to inspect the complete reports at the
hearing, but did not furnish copies or offer them as exhibits
and they were not made a part of the record. 1 The hearing
consisted only of the oral arguments of the parties and the
court’s inspection, in camera, of the reports. 	No other
evidence was presented.
At the conclusion of the hearing, the trial court held
that VSU was entitled to invoke the personnel exemption as the
basis for withholding information regarding its employees or
1 In oral argument on appeal, counsel for VSU stated that
the reports were returned to him and not delivered to the
clerk of the trial court.

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former employees and that its failure to disclose that
information was not willful. 	The court therefore denied
Bland’s claim for civil penalties. 	Although the court’s final
order was silent on the subject, the court ruled from the
bench at the hearing that Bland was entitled to any personnel
information regarding Bland himself that was contained in the
reports. 	Counsel for VSU agreed to provide Bland with the
originally redacted information that pertained to him.
Six weeks after the hearing, but before the entry of the
final order, Bland made a motion in the trial court for the
entry of an order requiring VSU to produce the complete 2003
and 2004 AACSB reports in order that they could be made a part
of the record for the purpose of appeal. 2 The court denied the
motion and entered a final order. 	Thus, the reports that the
court had examined and relied upon to make its decision were
not made a part of the record.
We awarded Bland an appeal. 	He assigned error (1) to the
trial court’s failure to find that VSU had violated the FOIA,
(2) to the trial court’s refusal to permit the record to be
2 Bland also asserted in his motion that VSU had provided
him with some, but not all, of the information in the reports
that pertained to him personally. 	When the motion was argued,
counsel for VSU provided Bland with additional information
from the reports pertaining to Bland. Counsel for VSU stated
that it had been omitted through oversight.

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completed, and (3) to the denial of his constitutional due
process rights. 	In the circumstances of this case, the issue
raised by the second assignment of error is dispositive.
Analysis
The exclusion from the record of any evidence that the
trial court has considered in reaching its decision, when the
evidence has been properly tendered for the record by a
litigant, impedes appellate review and constitutes an abuse of
discretion. 	An exhibit offered in evidence, whether admitted
or not, becomes a part of the record when initialed by the
trial judge, and not before. 	Rule 5:10(a)(3). 	The duty of
the trial judge to make up the record in this respect is a
judicial function, and cannot be delegated. 	Town of Falls
Church v. Myers, 187 Va. 110, 119, 46 S.E.2d 31, 36 (1948).
An appellate court cannot review the correctness of a trial
court’s decision unless the evidence upon which the trial
court relied is included in the record on appeal. 	Packer v.
Hornsby, 221 Va. 117, 121, 267 S.E.2d 140, 142 (1980).
The lack of such a record precludes our consideration of
Bland’s first assignment of error. 	The question whether the
trial court correctly ruled upon the applicability of the
“personnel exemption” to the reports in issue can only be
answered by an inspection of the reports themselves.

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Bland’s third assignment of error is subsumed by the
second. 	His contention that his constitutional rights were
violated is based only upon the trial court’s refusal to
complete the record by including the complete 2003 and 2004
AACSB reports. 	Our ruling on the second assignment of error
makes consideration of the constitutional question
unnecessary. 	See Volkswagen of America v. Smit, 266 Va. 444,
454, 587 S.E.2d 526, 532 (2003) (constitutional questions will
not be decided if the case can be decided on other grounds);
Keller v. Denny, 232 Va. 512, 516, 352 S.E.2d 327, 329 (1987)
(same).
Conclusion
This appeal illustrates a problem seemingly endemic to
FOIA cases. 	Following LeMond v. McElroy, 239 Va. 515, 391
S.E.2d 309 (1990), and Moore v. Maroney, 258 Va. 21, 516
S.E.2d 9 (1999), this is the third appeal of an FOIA decision
in which appellate review has been obstructed by the absence
of the essential record. 	As we pointed out in those cases, we
cannot “decide the issue in a vacuum;” we encouraged the
filing of allegedly confidential records for in camera
inspection by the trial court and, if necessary, by an
appellate court. 	LeMond, 239 Va. at 520, 391 S.E.2d at 312;
Moore, 258 Va. at 27, 516 S.E.2d at 12. 	Concerns of
confidentiality may be met by an order of the trial court

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directing that the records be kept under seal, a course
suggested by Bland in the present case.
In LeMond and Moore, the failure to preserve the
essential record was the fault of the litigants. 	Because the
responsibility for presenting an adequate appellate record was
upon the appellants seeking reversal of the trial courts’
decisions, we affirmed, without approving, the judgments of
the trial courts in both cases. 	LeMond, 239 Va. at 520-21,
391 S.E.2d at 312; Moore, 258 Va. at 27, 516 S.E.2d at 12-13.
Here, by contrast, Bland, the appellant, moved the trial court
to include the essential reports in the record under seal, but
VSU opposed the motion and the trial court denied it. 	That
ruling effectively prevented appellate review and was an abuse
of discretion requiring reversal.
Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings consistent
with this opinion, limited to the issue raised by Bland’s
first assignment of error.
Reversed and remanded.