Keil v. O'Sullivan: “May Be Located” Makes a Person a Data Subject Even Without Name-Indexed Files Under Virginia’s Government Data Act

I. Introduction

Case: Keil v. O'Sullivan, Supreme Court of Virginia (Feb. 12, 2026).
Parties: Matthew Keil (a Chesapeake Sheriff’s Office officer demoted after an internal-affairs investigation) v. Jim O’Sullivan, Sheriff of the City of Chesapeake (official capacity).
Context: After a jail incident involving an inmate and deputies under Keil’s supervision, the Chesapeake Sheriff’s Office (“CSO”) investigated and imposed discipline. Keil sought access to related records—documents and media—invoking both the Virginia Freedom of Information Act (VFOIA) and the Government Data Collection and Dissemination Practices Act (the “Government Data Act”). Some materials were produced; contested internal-affairs materials were withheld.

Core issues:

  • VFOIA: Were the withheld internal-affairs records exempt from disclosure?
  • Government Data Act: Is Keil a statutory “data subject” entitled to access “personal information” about himself where internal-affairs files are not organized or searchable by employee name but can still be found and contain his identifying particulars?

The Supreme Court affirmed dismissal of Keil’s VFOIA claim but reversed on the Government Data Act, holding that the CSO’s refusal violated the Act because Keil’s personal information may be located in the internal-affairs records even absent formal indexing by name.

II. Summary of the Opinion

The Court:

  • Affirmed the rejection of Keil’s VFOIA claims (records were exempt; no VFOIA remedy on this record).
  • Reversed the rejection of Keil’s Government Data Act claim, holding that:
    • The statutory definition of “data subject” includes a person whose personal information “is indexed or may be located” under the person’s name, personal number, or other identifiable particulars in an information system.
    • The CSO cannot defeat Government Data Act access by maintaining internal-affairs files outside personnel files and organizing them by year/sequential number rather than by name.
  • Remanded for the circuit court to conduct an in camera review and order disclosure of “personal information” about Keil, with redactions of non-personal-information material.

III. Analysis

A. Precedents Cited

1. Privacy/Data-Access Foundations

Carraway v. Hill, 265 Va. 20 (2003), supplied an important framing: the Government Data Act generally does not render covered personal information confidential; instead, it regulates collection, retention, and dissemination practices. This supports the Court’s orientation toward “access-and-governance” rather than “categorical secrecy,” making Keil’s access claim plausible even where VFOIA access fails.

Hinderliter v. Humphries, 224 Va. 439 (1982), is the opinion’s centerpiece. There, the Court held that an internal investigation report placed in an officer’s personnel file was within an “information system,” contained “personal information,” and made the officer a “data subject” entitled to review. The Court in Keil treated Hinderliter as establishing the Act’s privacy-protective purpose and broad coverage (manual files qualify; employment/disciplinary material is “personal information”).

The Court of Appeals had attempted to distinguish Hinderliter v. Humphries because the report there was in a name-arranged personnel file (thus “indexed”). The Supreme Court rejected that distinction as non-dispositive because the statute is disjunctive: “indexed or may be located.” In other words, Hinderliter supports access not because the government used a particular filing method, but because personal information about the officer existed in an information system in a retrievable way.

2. “Identifiable Particulars” and Related Data Act Jurisprudence

The Court acknowledged the relevance of Neal v. Fairfax County Police Department (Neal I), 295 Va. 334 (2018), and Neal v. Fairfax Cnty. Police Dep't (Neal II), 299 Va. 253 (2020), particularly on what constitutes “identifiable particulars” and “personal information” (including that pictures can qualify as personal information, as held in Neal I). But the Court emphasized that the controlling dispute here was not the definitional boundaries of “identifiable particulars”; it was the reach of the statute’s separate phrase “may be located,” which governs the required search/locatability inquiry.

3. Statutory Interpretation Canons and Authorities

The Court’s methodology was overtly textualist and canon-driven:

  • Conjunctive/Disjunctive Canon: The Court relied on the ordinary disjunctive force of “or,” supported by authorities including Campos-Chaves v. Garland, 602 U.S. 447 (2024), Patterson v. Commonwealth, 216 Va. 306 (1975), and South E. Pub. Serv. Corp. v. Commonwealth, 165 Va. 116 (1935). This was central: “indexed” and “may be located” are alternatives, not synonyms.
  • “Including, but not limited to” as a Broadening Phrase: Citing Tomlin v. Commonwealth, 302 Va. 356 (2023), the Court treated the statute’s “including, but not limited to” language as an express rejection of narrowing interpretive constraints, supporting a broad conception of “personal information.”
  • Term-of-Art Canon: Relying on Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257 (2022), and Corning Glass Works v. Brennan, 417 U.S. 188 (1974), the Court explained that when statutes use technical terminology (here, “indexed” in information-science contexts), courts may consult specialized lexicons. The Court also referenced Van Buren v. United States, 593 U.S. 374 (2021), as an example of consulting specialized computer dictionaries.

4. VFOIA/Federal FOIA References and Official-Capacity Framing

The Court confirmed that federal FOIA does not apply to state/local agencies, citing Department of Homeland Sec. v. MacLean, 574 U.S. 383 (2015), and Milner v. Department of the Navy, 562 U.S. 562 (2011). It also reaffirmed the legal character of official-capacity suits by citing Brooks-Buck v. Wahlstrom, 304 Va. 470 (2025), Kentucky v. Graham, 473 U.S. 159 (1985), and Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978).

B. Legal Reasoning

1. The Court’s Core Holding: “Indexed” Is Not Required When Records “May Be Located”

The operative statutory definition provides that a “data subject” is an individual about whom personal information “is indexed or may be located” under the individual’s name, personal number, or other identifiable particulars in an information system. The lower courts treated the absence of name-searchability or indexing as defeating standing/access. The Supreme Court rejected that approach as inconsistent with the statute’s disjunctive structure.

The Court read “indexed” as a term with technical meaning (especially in digital retrieval systems) and contrasted it with “may be located,” which it treated as intentionally broader and more practical—capturing circumstances where records are retrievable without an indexing regime (e.g., manual files, “secret” internal-affairs repositories, or files organized by year and sequential number).

2. Anti-Evasion Principle: Filing Practices Cannot Nullify Statutory Access

A notable feature of the evidence was the Sheriff’s testimony that he decided not to place internal-affairs records in personnel files and restricted access to a few officials. The Court treated this as illustrating why the statute includes “may be located”: access cannot depend on an agency’s unilateral choice to avoid indexing by name or to segregate records into less visible repositories. Otherwise, an agency could “sideline” statutory rights through recordkeeping design.

3. Breadth of “Personal Information” as Applied to Internal-Affairs Materials

The Court emphasized the Act’s expansive definition of “personal information,” including information describing anything about an individual (including employment record) and information affording a basis for inferring “things done by or to” the individual. Internal-affairs files about a supervising deputy’s actions/inactions in an incident readily fit this definition. Importantly, the Court also confirmed the Act can apply to audiovisual materials (body camera footage, audio/video recordings, photographs) to the extent they meet the statutory definition.

4. Remedy and Procedure: In Camera Review and Redaction

Rather than ordering wholesale production, the Court required the circuit court to:

  • review withheld records in camera to determine what contains Keil’s “personal information” subject to Code § 2.2-3806 rights;
  • order disclosure/access to those portions; and
  • redact material that does not directly or indirectly contain Keil’s personal information.

This approach reflects a balancing mechanism internal to the Government Data Act: it vindicates data-subject access while protecting unrelated information contained within the same investigative file.

C. Impact

1. Expanded, Functional “Data Subject” Access in Practice

The decision establishes a functional retrieval standard: if an agency can reasonably find personal information about an individual in a system—even one not indexed by that individual’s name—the individual is still a “data subject” and can invoke statutory access rights. This is likely to increase Government Data Act requests by public employees seeking internal investigative materials about themselves, especially in law-enforcement and corrections settings.

2. Constraints on Recordkeeping Tactics

The opinion reduces incentives for agencies to structure filing systems to avoid access (e.g., moving investigative files out of personnel folders, using numbering systems, restricting metadata, or keeping “separate” internal repositories). Post-Keil, those tactics do not eliminate access obligations if personal information can still “be located.”

3. Procedural Normalization of In Camera Review and Targeted Redaction

The remedy framework encourages trial courts to treat mixed investigative files as severable: access to the requester’s personal information, protection of the rest. This may become a standard judicial management technique in Government Data Act litigation.

4. Relationship to VFOIA

By affirming VFOIA denial but granting Government Data Act relief, the Court highlighted a critical doctrinal division: VFOIA governs public disclosure (with law-enforcement and prison-related exemptions), while the Government Data Act creates an individualized access right for the person to whom the data pertains. Future litigants may pivot from VFOIA to the Government Data Act when seeking information about themselves in exempt investigative contexts.

IV. Complex Concepts Simplified

  • “VFOIA exemption”: Some government records are not available to the public under VFOIA—especially certain law-enforcement administrative investigation materials and records tied to imprisoned persons. An exemption can defeat public-access claims even when the requester is personally involved.
  • “Government Data Act ‘data subject’”: A person gets special access rights to records containing that person’s “personal information” if the information is in an “information system” and is either “indexed” or can “be located” using the person’s identifying particulars.
  • “Indexed” vs. “may be located”: “Indexed” implies a structured lookup mechanism (like a database index or an alphabetical index). “May be located” is broader: if it’s realistically findable by looking through a repository for the person’s name/number/identifiers, the statute applies.
  • “In camera review”: The judge privately examines records to decide what must be disclosed.
  • “Redaction”: The court can black out or remove unrelated information before disclosure to protect others’ data or non-covered content.
  • “Official-capacity suit”: Suing an official in their official role is effectively suing the government entity, not the individual personally.

V. Conclusion

Keil v. O'Sullivan cements a significant Government Data Act principle: an individual’s status as a “data subject” does not depend on whether the government chose to index records under that person’s name. The statute’s disjunctive text—“is indexed or may be located”—prevents agencies from avoiding data-subject access through recordkeeping design, including segregated internal-affairs files organized by neutral numbering systems.

At the same time, the Court preserved institutional confidentiality interests by directing in camera judicial screening and redaction—a tailored remedy that is likely to shape future disputes at the intersection of internal investigations, personnel consequences, and individual privacy/access rights under Virginia law.