FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Ms. Meredyth P.
Regulatory Support Services, Inc.
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your letter
of December 11, 2000.
Dear Ms. Partridge:
You have asked whether
the Virginia Board of Funeral Directors and Embalmers ("the
Board") may exempt from disclosure lists of applicants applying
for licensure. You indicate that the Board has in the past
provided your company with lists of the names of applicants
who have applied to take the Board's licensing examination.
Your company offers a study course to help students prepare
for the examination. Recently, after receiving a complaint
from one of the students whom you contacted from the list,
the Board declared that such lists of applicants were exempt
and embalmers are one of many professions and occupations
governed by the Department of Health Professions ("the Department)
pursuant to § 54.1-2400 et seq. of the Code of Virginia. The
Board is one of the regulatory bodies that comprise the Department.
The Virginia Freedom of Information Act (FOIA) exempts certain
records maintained and collected by the Department or its
boards. Specifically, subsection A. 12. of § 2.1-342.01 exempts
from disclosure [a]pplications for admission to examinations
or for licensure and scoring records maintained by the Department
of Health Professions or any board in that department on individual
licensees or applicants. As a result, the Board may rightfully
withhold the names of the applicants for its licensing examination.
The exemptions set
forth in FOIA do not mandate that a public body withhold records
when an exemption applies. Instead, the law provides that
the records set forth in the exemptions are excluded from
FOIA, but may be disclosed by the custodian in his discretion,
except where such disclosure is prohibited by law. It
appears from the facts that you present that the Board chose
to exercise its discretion to release these records in the
past, even though an exemption applied. The Board has more
recently chosen to exercise the exemption that allows them
to withhold the records from public access.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett