FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Horace McGhee
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 phone
conversations of April 27 and May 7, 2001.
Dear Mr. McGhee:
You have asked whether
you may access documents relating to investigations at a public
high school under the Virginia Freedom of Information Act
(FOIA). The investigations stem from an alleged assault of
your son, a student at the school, by a teacher. You have
been told by the school administration that two investigations
were conducted -- one by the school principal and the other
by the school superintendent -- and that both investigations
found no merit in your son's claims. You indicate that when
you asked to see the records relating to the investigations,
the school responded that the documents were exempt from FOIA
pursuant to the scholastic records exemption, the personnel
records exemption, and the attorney-client privilege exemption.
You ask if these exemptions do indeed bar you from viewing
the records concerning the investigation into your son's alleged
This analysis will
first turn to the various exemptions invoked by the school
in response to your request. Subdivision A. 3. of § 2.1-342.01
allows a public body to withhold [s]cholastic records containing
information concerning identifiable individuals, except that
such access shall not be denied to the person who is the subject
thereof, or the parent or legal guardian of the student.
FOIA defines a scholastic record at § 2.1-341 as records
containing information directly related to a student and maintained
by a public body which is an educational agency or institution
or by a person acting for such agency or institution.
This office has previously interpreted the definition of a
scholastic record to include more than just records of grades
or academic performance.1 The records of the investigations
most likely contain information directly related to your son
and the records are maintained by the school, making them
scholastic records. The exemption clearly states that while
such records may generally be withheld from the public, they
are to be made available to the parent of the identified student.
As such, it is unclear why the school would invoke this exemption
in response to your request.
Subdivision A. 4.
of § 2.1-342.01 exempts [p]ersonnel records containing
information concerning identifiable individuals. The records
of the investigation would likely contain information concerning
the teacher involved in the incident, and in addition to being
scholastic records, could also likely be classified as personnel
Finally, the school
also cited subdivision A. 7. of § 2.1-342.01, which allows
a public body to withhold [w]ritten advice of legal counsel
to state, regional or local public bodies or public officials
and any other records protected by the attorney-client privilege.
To the extent that the investigation records also included
correspondence to and from the school's legal counsel concerning
such topics as possible actions to be taken or discussion
of potential litigation, these records may properly be withheld.
However, this exemption would not cover all records related
to the investigations conducted by the principal and superintendent
merely because they were shared with the school's attorney.
In addition to the
FOIA exemptions cited by the school, the federal Family Educational
Rights and Privacy Act of 1974 (FERPA), which governs dissemination
of education records by an educational agency, is also directly
relevant.2 FERPA's definition of an educational
record parallels FOIA's scholastic record definition, and
defines educational records as records, files, documents,
and other materials which (i) contain information directly
related to a student; and (ii) are maintained by an educational
agency or institution or by a person acting for such agency
or institution. FERPA states that in order to receive
federal funding, an educational agency must grant parents
the right to inspect and review the education records of their
children. In addition, an educational agency may not disseminate
educational records to third parties without the prior consent
of the student's parents.
The records in question
can likely be classified as both scholastic and personnel
records. Subsection A of § 2.1-342.01 states that records
set forth in that provision are excluded from the provisions
of this chapter but may be disclosed by the custodian at his
discretion, except where such disclosure is prohibited by
law. The personnel exemption found at subdivision A. 4.
of § 2.1-342.01 allows, but does not require, a public body
to withhold such records from the public. There is no other
law within the Code of Virginia that prohibits the release
of personnel records. However, both federal and state law
require that a student's records be made available to the
student's parents. Therefore, the educational agency could
not lawfully exercise the personnel exemption at the expense
of denying a parent access to those same records if the records
directly relate to the student.
In conclusion, FOIA
and FERPA both require that records directly relating to a
student be released to the parents, which would include records
of investigations stemming from an alleged assault on your
son. The portion of the records that would be considered a
part of your son's scholastic record would detail the incident
reported by your son, and any investigation into this matter.
However, due to the nature of the records, it is likely that
your son's scholastic records are intertwined with information
properly subject to other FOIA exemptions. This other information,
such as identifiable information relating to other students,
personnel records, or records subject to the attorney-client
privilege may be redacted by the school in response to your
request. For example, the portions of the investigation records
relating to a decision as to whether to take disciplinary
action against the teacher in question would be classified
as personnel records, not scholastic records, and may be properly
withheld by the school. The identity of any other student
questioned during the investigation must be redacted unless
the school obtains the consent of the other students' parents,
pursuant to federal and state law, because this information
would be considered a part of that student's scholastic records.3
Finally, correspondence in relation to the investigation seeking
advice from the school's attorney may be withheld. Therefore,
while you are entitled to receive the portions of the records
directly relating to your son, other information falling under
other FOIA exemptions may be redacted by the school in its
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Virginia Freedom of Information
Advisory Council AO-7 (2001).
U.S.C.A. § 1232g (1998).
20 U.S.C.A. § 1232g (1998). See also Va. Code Ann. § 22.1-287