Virginia State Corporation Commission eFiling CASE Document Cover Sheet VI p p Case Number (if already assigned) p"X-~ o ^ O ^ 5 " " OCCf 5^ VI Case Name (if known) Document Type Document Description Summary Fast Auto Loans, Inc. v. E.J. Face, Jr., Commissioner of Financial Institutions and Commonwealth of Virginia State Corporation Commission ^XPe Petition to withhold production of Annual Report of Fast Auto Loans, Inc. pursuant to letter request of E.J. Face Jr. dated November 19, 2015 and regarding request for production of Fast Auto's 2014 Annual Report from the Center for Public Integrity Total Number of Pages 15 Submission ID 10360 eFiling Date Stamp 11/30/2015 10:56:07AM {.TTWCSTP.IWWM'V •'iM'-.-A'V.ts:.o-vjc^tJ. i \ .»ieaj»ArVA»«WSJ?qT^i^Wisjx^pB%1 -.«.hV(tM4V%MVWrJ^' -> • 1 >,-»T«5U5Sr:>V»t^-i .- t* £h SCC could withhold production, the SCC would comply with the Center for Public Integrity's request. A copy of that letter is attached as Exhibit A. 11. Fast Auto identifies the following grounds upon which the SCC is legally compelled to withhold production of the Annual Report: 1) the Annual Report is not an "administrative activity" of tire SCC subject to disclosure by the Clerk of the SCC under Va. Code §12.1-19(C); 2) the Annual Report is confidential under Va. Code § 6.2-101; 3) The SCC is not subject to the Virginia Freedom of Information Act; and 4) even if the SCC were subject to the Virginia Freedom of Information Act, the request at hand does not compel production under the Act. COUNT I - Annual Report not subject to disclosure under Va. Code § 12.1-19(0 12. Fast Auto incorporates by reference Paragraphs 1 through 11 above as if fully restated herein. 13. Under Virginia Code § 12.1-19(C)(1), the Clerk of the SCC is charged with making "records related to the administrative activities of the Commission" available to the public for inspection. 14. The "administrative activities" of the Commission are "matters related to the Commission's operational responsibilities and operational functions, including its revenues, expenditures, financial management and budgetary practices, personnel policies and practices, and procurement policies and practices. 'Administrative activities' shall not include the Commission's formal or informal regulatory or legal proceedings or activities, records related to which shall be governed, inter alia, by laws and regulations applicable specifically to such regulatory and legal proceedings or activities, or in accordance with applicable legal privileges." Va. Code § 12.1-19(C)(5). 3 © 1/3 ^ p ifl p p rfe 15. Fast Auto's Annual Report is not an "administrative activity" of the Q Commission—it is not related to the Commission's operations, finances, personnel management, ^ y^j or procurement. Instead, the Annual Report is part of the Commission's regulatory activities and subject to the laws and regulations applicable to said regulatory proceedings (see Count 11). As such, the Clerk has no authority to release the Annual Report under Va. Code § 12.1-19(C), and the Center for Public Integrity's request should be denied. COUNT II - Annual Report is Confidential under Title 6.2 of the Virginia Code 16. Fast Auto incorporates by reference Paragraphs 1 through 15 above as if fully restated herein. 17. Title 6.2 of the Virginia Code governs the Commission's regulatory proceedings relating to Fast Auto. 18. Virginia Code § 6.2-101(A) states, in relevant part, as follows: Except as otherwise provided in this title or § 12.1-19, the following shall not be disclosed by the Commission or any of its employees ... (ii) any information furnished to or obtained by the Bureau, the disclosure of which, in the opinion of the Commissioner, could endanger the safety and soundness of a bank, savings institution, or credit union; or (iii) any personal financial information furnished to, or obtained by the Bureau." 19. While "personal financial information" is not defined in Title 6.2 (or elsewhere in the Virginia Code), "Person" is defined as "any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or other legal or commercial entity." Va. Code §§ 6.2-100 and 6.2-2200. 20. Under Va. Code § 6.2-2210, institutions like Fast Auto "shall annually, on or before March 25, file a written report with the Commissioner containing such information as the 4 I P t^ Commissioner may require concerning his business and operations during the preceding calendar © year as to each licensed place of business. Reports shall be made under oath and shall be in the ^ trw form prescribed by the Commission." 21. The State Corporation Commission has set forth the requirements for the Annual Report in the Virginia Administrative Code. 10 Va. Admin. Code § 5-210-10 et seq. 22. The Annual Report is "information furnished to or obtained by the Bureau...." Additionally, the Annual Report contains information that if disclosed "could endanger the safety and soundness of a bank, savings institution, or credit union...." 23. Specifically, the Annual Report includes proprietary business information that if it were released could endanger the safety and soundness of Fast Auto. Competitors would be able to access information about Fast Auto's business practices, including loan amounts, rates charged, and length repayment periods thereby undermining Fast Auto's ability to conduct business in Virginia. 24. Additionally, the Annual Report includes Fast Auto's financial information. Fast Auto is not a publicly held entity and its financial statements are not made available to the public. The release of Fast Auto's financial information would likewise endanger the safety and soundness of Fast Auto as its balance sheets and income statements would be made available to the public, again undermining Fast Auto's ability to conduct business in Virginia. 25. Further, the Annual Report includes the identification of some of Fast Auto's customers and those consumers have an expectation of privacy relating to their financial dealings with Fast Auto. 26. The Annual Report also constitutes "any personal financial information furnished to, or obtained by the Bureau." 5 Ui P P 27. The Virginia Code does not define "personal financial information." The phrase, however, is used in the SCC's sections of the Virginia Code and Virginia Administrative Code, and is occasionally preceded by the word "consumer's" personal financial information. See e.g. 10 Va. Admin. Code §§ 5-161-70, 5-120-70, 5-210-90. Virginia Code § 6.2-101 refers to "any" personal financial information, and is, therefore, not limited to "consumer" data. Additionally, "person" is defined to include "corporations" like Fast Auto. Thus, the Commission is prohibited by Virginia Code §6.2-101(A)(rii) from releasing Fast Auto's Annual Report as it contains the personal financial information of Fast Auto. 28. For these reasons, the SCC is legally compelled to withhold production of the Annual Report under Va. Code § 6.2-101(A), and the request from the Center for Public Integrity should be denied. COUNT III - SCC is not subject to the Virginia Freedom oflnformation Act 29. Fast Auto incorporates by reference Paragraphs 1 through 28 above as if fully restated herein. 30. The Virginia Supreme Court has held that the State Corporation Commission is not subject to the Virginia Freedom of lnformation Act. Christian v. State Corporation Commission, 202 Va. 392 (2011). A copy of the opinion is attached as Exhibit B. 31. In Christian, a citizen requested documents from the SCC through the Virginia Freedom oflnformation Act ("FOIA"). The SCC declined to provide the requested documents, arguing that it was not subject to FOIA and that the requested information was not readily available. The citizen appealed. The Virginia Supreme Court specifically held that FOIA is not applicable to the SCC on three grounds: 1) that the SCC has its own separate and parallel structure of laws relating to information disclosure (including those referenced above in Count 6 & <3 m i-.'isMsvwrnr-irji f^Tl?iWW^w ») •• >'rtu^f.i ^s^,^;. •-• "-l w-^vi, & m K> t* flfsb 1); 2) the SCC is not a "public body" because it is authorized by the Constitution, not through the *9 legislature or executive branch; and 3) there is no mechanism'by which the FOIA can be ^ W fc5 enforced against the SCC. 32. The Christian case remains good law in Virginia, and while the General Assembly has amended the FOIA and SCC information disclosure statutes since the Christian opinion was released, the General Assembly has not acted to make the SCC subject to FOIA. Thus, the FOIA remains inapplicable to the SCC, and the Center for Public Integrity's request for Fast Auto's Annual Report should be denied. COUNT IV - Even if FOIA annlies, the request at hand docs not compel production 33. Fast Auto incorporates by reference Paragraphs 1 through 32 above as if fully restated herein. 34. Even if this body were to determine that FOIA does apply to the SCC, the request at hand does not compel production under the FOIA. 35. The FOIA defines "public records" to include documents "prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Records that are not prepared for or used in the transaction of public business are not public records." 36. The Annual Report is not a document that was "prepared or owned by" any "public body" in the "transaction of public business." 37. Courts have held that "public business" "encompasses those matters over which the public governmental body has supervision, control, jurisdiction, or advisory power." Burton v. Mann, 74 Va. Cir. 471, 474 (Loudoun Cty. Cir. Ct. Jan. 30, 2008) quoting Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 940 (Mo. App. W.D. 1993). The proprietary business operations 7 and financial information of Fast Auto arc not matters over which a public governmental body has supervision, control, jurisdiction, or advisory power. Thus, the contents of the Annual Report are not "public records" which are subject to disclosures under FOIA. 38. Regardless, the FOIA provides that "public records" are open to inspection and copying by "any citizens of the Commonwealth.... Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers or magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth." Va. Code § 2.2-3704. 39. Upon information and belief, the Center for Public Integrity is not a citizen of the Commonwealth of Virginia. Additionally, upon information and belief, the Center for Public Integrity is not a newspaper or magazine with circulation in the Commonwealth, nor is it a radio or television station broadcasting into the Commonwealth. Rather, the Center for Public Integrity maintains a website, and that is not a form of media to which the General Assembly has granted access to public records in the Commonwealth through FOIA. Thus, the Center for Public Integrity is not entitled to seek documents under FOIA and its request should be denied. WHEREFORE, Petitioner Fast Auto Loans, Inc. respectfully requests that the State Corporation Commission withhold production of the Annual Report pursuant to the grounds described above or for other grounds as determined by the Commission. Respectfully Submitted, FAST AUTO LOANS, INC. 8 yfj John B. Mumford, Jr. (VSB No. 38764) Eileen R. Geller (VSB No. 76764) © g Hancock, Daniel, Johnson &Nagle, P.C. ^ 4701 Cox Road, Suite 400 Glen Allen, Virginia 23060 imumford@.hdin.com egel]er@,hdin.coffl Phone: (804) 967-9604 Facsimile: (804) 967-9604 Counsel for Peliiioner 9 CERTIFICATE OF SERVICE I certify that on the 30th day of November 2015 a copy of the foregoing Petition was filed electronically with the State Corporation Commission. Additionally, a copy was provided to respondents by fax and hand delivery to the following: E.J. Face, Jr.; Commissioner, Financial Institutions William H. Chambliss, General Counsel State Corporation Commission 1300 East Main Street, Suite 800 Richmond, VA 23218-0640 gencounsel@scc.virginia.gov Phone:(804)371-9657 Facsimile: (804)371-9416 Respondents Eileen R. Geller 10 Commonwealth- OF \/,R6 n^ E. 1 . FACE, JR. COMMISSIONER Op FtNANCIAL INSTITUTIONS 1300 EAST MAIN STREET SUITE EIGHT HUNDRED P.O. BOX 640 RICHMOND, VIRGINIA 33218-0640 (804) 371-9657 FAX (804) 371-9416 wvw.scc.vlrglnia-Bov STATE CORPORATION COMMISSION BUREAU OF FINANCIAL INSTITUTIONS November 19, 2015 Robert Reich President and Chief Executive Officer Fast Auto Loans, Inc. 8601 Dunwoody Place, Suite 406 Atlanta, Georgia 30350 Dear Mr. Reich: On November 12, 2015, the State Corporation Commission ("Commission") received a request from the Center for Public Integrity for a copy of the 2014 annual report that was filed by your company with the Bureau of Financial Institutions ("Bureau") pursuant to § 6.2-2210 of the Code of Virginia. The information request also included the annual reports for two other companies that are licensed under Chapter 22 of Title 6,2 of the Code of Virginia. The request came as a media inquiry to the Commission's Division of Information Resources. The Bureau, having conferred with its counsel, is unable to identify a statutory or other legal basis that would prohibit the Bureau from treating your company's annual report (including its attachments) as a public record. However, if you believe that the Bureau is legally compelled to withhold production of all or any portions of your company's annual report, you have the option to file a petition with the Commission pursuant to the Commission's Rules of Practice and Procedure no later than November 30. 2015. Pursuant to the Commission's practice for responding to information requests as guided by § 12.1-19 C 4 of the Code of Virginia, the Commission has already extended its first response time threshold. Please be advised that if a petition is not filed with the Commission by November 30,2015, a copy of your company's 2014 annual report will be provided to the requestor in its entirety, including the financial statements and any other attachments to the annual report. If you have any questions, please contact Todd Rose at (804) 371-9671. mm © j ,var oV f .. H> Page I p p Jb LexisNexiV l of l DOCUMENT GEORGE H. CHRISTfAN v. STATE CORPORATION COM MISSION Record No. 102477 SUPREME COURT OF VIRGINIA 282 Vn. 392 ; 718 S.E. 2d 767; 2011 Va. LEXIS 217 November 4, 2011, Decided PRIOR HISTORY: [***!] FROM THE STATE CORPORATION COMMIS­ that the Commission's authority to order a refund has lapsed," and any complaints or grievances arising there­ SION. from. (Id.) In a letter dated May 22, Philip R. de Haas, Deputy General Counsel - Financial Services of the SCC, DISPOSITION: Affirmed. responded that "[w]hi!e the [VFOIA] does not apply, It is the policy of the Clerk to provide infonnation and docu­ COUNSEL: George I I. Christian, Pro sc. ments upon [*,," ,2] request to the extent it is able. However, your information requests pertain to data that is not readily available." He proceeded to direct Christian Scott A. White, Senior Counsel (C. Maureen Stinger, Associate Genera! Counsel; Philip R. de Haas, on brief), to websites that might be helpful in obtaining some, but not all, of the information which he sought. for appellee. I The General Assembly made various JUDGES: OPINION BY JUSTICE LF.ROY F. MIL- amendments to the VFOIA in 2011. None mate­ LETTE. JR, rially affect the analysis in this case, but when the OPINION BY: LEROY F. MILLETTE Christian's request, we cite to the former Code, as amended, effective in 2009. language differs from that operative at the time of OPINION [•*768] On June 22,2009, Christian filed with the SCC a pro [*395] PRESENT: All the Justices OPINION I3Y JUSTICE LEROY F. MILLETTE, JR. se "Petition for Temporary Injunction and Petition for Declaratory Relief," alleging that the Clerk had failed to provide [**769] the requested public records relating The threshold issue in this case is whether the Vir­ to the oveipayments or unused payments and complaints regarding the overpayments or unused payments for ginia Freedom of Information Act (VFOIA) is applicable which the Commissioner's authority to order a refund to the State Corporation Commission (SCC). For the had lapsed. Christian's prayer for relief also requested reasons that follow, we conclude that it is not. attorney's fees and costs. On July 9, the [*396] Clerk's Office produced a single document that it represented I. BACKGROUND was responsive to Christian's petition. On May 13, 2009, George H. Christian submitted The SCC assigned Christian's petition to the Chief two letters to the Clerk's Office of the SCC requesting Hearing Examiner, who, after oral argument, filed a re­ information pursuant to the VFOIA, Code §§ 2.2-3700 through -37143 For the period of 2008, Christian re­ port recommending [***3] 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 quested a searchable database of SCC employees, public records listing "all overpayments or unused payments •.X.VrtVWViHt.tRtrtyjV -j >A>V»'^ yj [=4 Page 2 & 282 Va. 392, *;718S.E,2d 767, *•; 2011 Va. LEXIS 217, ••* Office's timely response to the Petitioner's Request for records." The SCO 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 Ihe denial of his motion for reconsideration, Cln istian appealed to this Court. In his appeal, Christian designates seventeen as­ signments of error. In addition to raising various proce­ dural matters and objecting to the actions taken by the emphasized that the SCC's response was "in direct viola­ tion [***5] of the VFOIA, including delivery well be­ yond the five-work-day deadline" and added that a live controversy persisted because he would be entitled to recover his costs and tees if he prevailed. At the time of Christian's request, the VFOIA re­ quired 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: (I) that the records are being entirely withheld, (2) that the SCC following his receipt of the information requested records are being partially provided and partially with­ in his petition, Christian argues that the SCC erred in held, (3) that the records could not be found or do not failing to find the VFOIA applicable to the SCC. exist, or (4) that more time is necessary. Former Code § 2,2-3704(0)} 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 f II. DISCUSSION 2.2-3704(B)(l). The letter response from the SCC indi­ 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 enti­ tled to the respect due judgments of a tri­ bunal informed by experience," and we will not disturb [***4j the Commission's cating that the requested information was not "readily available" did not [**770] satisfy any of these alterna­ tives as set forth within the statute. 2 This section has been amended since Chris­ tian's original petition. The SCC's original re­ sponse was Insufficient under cirhcr version of the statute. The Act went on to provide that: analysis when it is '"based upon the ap­ plication of correct principles of law.'" If the court finds [***6] the denial to Lawyers Title Insurance Corp. v. No west be in violation of the provisions of this Cor)), (quoting chapter, the petitioner shall be entitled to First Virginia Bank v. Commonwealth., 254 Va 388, 390-9!, recover reasonable costs and attorneys' 493 S.E.2d 114, 115 (1997) Swiss Re Life Co. Am. v. Gross, 253 Va. 139, 144, 479 S.E.2d 857, 860 (1997)). However, the fees from the public body if the petitioner substantially prevails on the merits of the Commission's decision, if based upon a make an award unjust. case, unless special circumstances would mistake of law, will be reversed., 213 Va. 349, 351, l93S.E.2d 4.5(1972) Former Code § 2.2-3713 (D). The SCC therefore is entitled to deference as to its find­ ings 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. Stale Corp. Comm'n, 282 Va. 41, 46, 710 S.E. 2d 474, 477 (2011) (on appeal, [*397] the question of whether SCC properly construed statutes is subject to dc novo review). B. Actual Controversy While many elements are required to show an actual In Cartwrighl v. Commonwealth Transportation Commissioner of Virginia, 270 Va. 58, 613 S.E,2d 449 (2005), we addressed a similar issue involving late pro­ duction of documents under the VFOIA. In Cartwright, we said: [*398] It is true that VDOT provided Cartwright with the requested sales bro­ chure. However, this action does not re­ solve the issue joined in this appeal, that is, whether a mandamus action brought pursuant to Code § 2.2-3713 is barred by finding of the SCC was that the production of the re­ the petitioner having an adequate remedy at law. This is so because, if Cartwright quested documents rendered the petition moot. Christian, prevails, the issues whether his petition in objecting to the report of the Chief Hearing Examiner, for mandamus should have been granted controversy, the record makes clear that the specific v^;aKa„... tn H Page 3 H 282 Va. 392, *; 718 S.E.2d 767,**; 2011 Va. LEXIS 217, *** the [VjFOlA First, the SCC argues that a separate and parallel and, if so, his entitlement to recover his because VDQT violated structure of laws specifically addresses the handling of costs and fees would remain to be re­ information at the SCC. The SCC points to certain ex­ solved in the circuit court. Thus, the issue raised by this appeal "is not one in which plicit duties of its Clerk's Office to provide public infor­ there is no actual controversy or in which mation enumerated in Code § 12.1-19(A), as well as stat­ utes providing for copy costs, (e.g., Code § 12.1-21.1), no relief can be afforded," and, and confidentiality provisions, (e.g., Code § 6.2-101), as [***7] consequently, it is not moot. 270 Ka at 63, 613 S.E.ld at 452 (quoting in part RF&P Corp. v. Utile, 247 /a, 309, 315, 440 S.E.ld 908. 912, 10 Va. Law Rep. 1021 (1994)). Likewise, the production of documents in the instant case docs not resolve all of the issues raised in this appeal, namely, whether Chris­ tian 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 impres­ examples of apparent con 11 icts ['l",*9j with the VFOIA. The VFOIA serves as a blanket provision from which public bodies may claim statutory exceptions. Sec Code §§ 2.2-3700(8), 2.2-3713(E), This Court has pre­ viously recognized (hat "the General Assembly's intent is [**771] to 'ensure[] the people of the Commonwealth ready access to records in the custody of a public body1. . , so as 'to promote an increased awareness by all per­ sons of governmental activities,"' and that "[t]o effectu­ ate that intent, the General Assembly has expressly pro­ vided that the provisions of the VFOIA are to be 'liberal­ ly construed.'" Cartwright, 270 Va. at 64, 613 S.E. 2d at 452 (quoting Code § 2.2-3700(8)). 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 pre­ ponderance of the evidence."). sion, whether the VFOIA Is applicable to the SCC. Because of the mandated principles of statutory con­ struction noted above, the existence of some parallel or 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 Coda §§ 2.2-3705.1 through -3705.7. This list is not ex­ haustive, however, as evidenced [',,*'l'8] by the opening even contradictory statutes applicable to the SCC does not suffice as proof that the VFOIA is inapplicable to the SCC as [***10] a whole. Indeed, the VFOIA is de­ signed to accommodate public bodies possessing some information that might need to remain confidential. sentence of Code § 2.2-3704(A): "Except as otherwise However, the SCC identifies not a few but at least specifically provided by law, all public records shall be twenty-seven different statutoiy provisions directing its open to inspection and copying by any citizens of the information disclosure. This multitude of provisions Commonwealth. . . ." (Emphasis added.)' The statute supports the SCC's argument that a separate and parallel structure of laws controls its information distribution. does not, therefore, require that the VFOIA itself be the mechanism of exemption. Accordingly, the [*399] [*400] Particularly persuasive is the fact that many of absence of a specific exemption for the SCC is not dis­ these provisions, such as Code § 12.1-19 (concerning the positive as to whether the VFOIA is applicable to the duties of the clerk), often specifically pertain to infor­ SCC. mation disclosure. They therefore serve the same general purpose as the VFOIA in distributing information, in­ 3 This language appears in both the fonner and current versions of Code § 2.2-3704(A). The SCC presents three primary arguments for the inapplicability of the VFOIA, Taken together, they offer compelling evidence thai the legislature did not intend stead of merely providing exceptions to disclosure in the interest of confidentiality. 2. The SCC is not a "public body" under the VFOIA. Second, the SCC argues that, based on its constitu­ the VFOIA to apply to the SCC. tional derivation, it is not a public body as defined under 1. The SCC is governed by a separate and parallel struc­ the VFOIA. Christian, however, maintains that it is, He bases his argument on a plain-meaning reading of the ture of laws. statute, as the VFOIA includes the term "commission" in (&3 jva-j .WRTOIWW • nlwCTW!w„... :,Jrw> Page 4 & © W 282 Va. 392, *; 718 S.E.2d 767,**; 2011 Va. LEXIS 217, *** the provision determining venue for enforcement pro­ ceedings. Code § 2.2-3713(A)(3). We have previously determined [***11] that the Commonwealth Attomey's Office is not a "public body" under the VFOIA because, "[a]s used in the [VJFOIA, 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 Ka 151, 161, 517 S.E.2d 228, 231 (2001). Likewise, the SCC - authorized under Article IX, § 4 of the Virginia Constitution - is similarly exempt from the VFOIA. 3. The VFOIA lacks a constitutional enforcement mech­ anism applicable to the SCC. Since this Court's ruling in Atlas, the VFOIA has undergone frequent amendments, including changes to the [***13] section in question, but the Virginia legis­ lature has not seen fit to modify the enforcement lan­ guage. The General Assembly is presumed to be aware of the decisions of the Court when enacting legislation. Andrews v. Commonwealth, 280 Va. 231, 286, 699 S.E.2d 237, 269 (2Q10)\ Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180-81, 7 Va. Law Rep. 1327 (1991). In fact, 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 Cor­ poration Commission." While this Court will not specu­ 1989, this Court upheld a circuit court ruling that the late on the reasons a particular bill was not adopted, the fact remains that both the current language of the VFOIA Code section of the VFOIA placing jurisdiction over and the language operative at the time of Christian's peti­ stale-wide commissions in Richmond City Circuit Court was inapplicable to the SCC, Atlas Underwriters, Ltd. v. tion do not provide for enforcement against the SCC, The SCC's final argument is the most persuasive. In State Corp. Common, 237 Va. 45, 46-47 375 S.E.2d 733, 734, 5 Va. Law Rep. 1388 (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 [***12] the SCC 'in the performance of its official du­ ties.'" Id. at 49 (quoting Va. Const, art. IX, § 4). Wc con­ cluded "that the framers of Article IX, § 4 , intended that [this] Court have exclusive jurisdiction over all chal­ lenges to all actions of the SCC, both judgmental and ministerial." Id. at 49. [*401] 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 titan exclusive. That language states that, in the case of a complaint against "a board, bureau, commission, authority, district, institution, or agency of the state govemment, including a public insti­ tution [**772] 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 Rich­ mond." Code § 2.2-3713 (emphasis added). Under our holding in Atlas, the enforcement provision therefore remains unconstitutional as applied to the SCC. The VFOIA therefore is functionally unenforceable against the SCC. As the SCC correctly points out, a pol­ icy with no constitutional enforcement provision has no legal weight. See First National Bank in St. Louis v. Missouri. 263 U.S. 640, 660, 44 S. Ct. 213, 68 L. Ed. 486 (1924). [***14] This issue is dispositive as to applica­ bility. The authority to amend the statute to make it en­ forceable against the SCC properly rests with the Gen­ eral Assembly, and this Court is not empowered to sec­ ond-guess the legislature's decision not to modify the statute following our ruling in Atlas. [*402] 111. CONCLUSION Had the VFOIA been applicable to the SCC, the late production of requested documents would not have ren­ dered Christian's claim moot, given his prayer for recov­ er)' of fees and costs under the VFOIA. Therefore, an adjudication of the applicability of the VFOIA to the SCC was a required threshold issue. For the foregoing reasons, however, this Court finds the VFOIA inapplica­ ble to the SCC. This substantive determination resolves or renders moot all of Christian's assignments of error, We therefore affirm the order of the State Corporation Commission dismissing Christian's petition. Affirmed. l/i