FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
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 March 3, 2004.
have asked a question concerning access to records relating
to a regulatory investigation under the Virginia Freedom of
Information Act (FOIA).
you ask whether records of a completed disciplinary investigation
by a board within the Department of Health Professions (DHP)
may be withheld from the subject of the investigation.1
By way of background, professions and occupations that require
licensing or other forms of regulation in order to engage
in the profession or occupation are governed generally by
the provisions of Title 54.1 of the Code of Virginia and are
within the purview of the Department of Professional and Occupations
Regulation (DPOR) and DHP. There are provisions within Title
54.1 that apply to all occupational boards, including those
regulated by DHP, and there are provisions within Title 54.1
that apply specifically to DHP and its regulatory boards,
and not to other boards within DPOR.
that § 54.1-108.3 of the Code of Virginia would require
records of completed investigations to be released, because
the section only requires [r]ecords of active investigations
conducted by a board within Title 54.12 to be kept confidential.
[Emphasis added.] Furthermore, you assert that an opinion
issued by the Virginia Freedom of Information Advisory Council,
Opinion 02 (2003), establishes a precedent that records pertaining
to an administrative investigation must be disclosed to the
subject of the investigation.
A of § 2.2-3704 states that [e]xcept as otherwise
specifically provided by law, all public records shall be
open to inspection and copying by any citizens of the Commonwealth.
The policy of FOIA at subsection B of § 2.2-3700 requires
that [a]ny exemption from public access to records...shall
be narrowly construed. While FOIA sets forth a number
of records exemptions at § 2.2-3705, exemptions can also
be found at other locations throughout the Code. One such
example is § 54.1-108, which states that official records
of DPOR, DHP, or any board named in Title 54.1 are subject
to FOIA, but that records of active administrative investigations
being conducted by those departments or boards are excluded
from this requirement. Paralleling this exemption is subdivision
A 13 of § 2.2-3705 which exempts [r]ecords of active
investigations being conducted by the Department of Health
Professions. However, subsection A of § 54.1-2400.2,
relating specifically to DHP and its regulatory boards, states
that [a]ny reports, information or records received and
maintained by any health regulatory board in connection with
possible disciplinary proceedings, including any material
received or developed by a board during an investigation or
proceeding, shall be strictly confidential. Subsection
G of § 54.1-2400.2 makes it a Class 1 misdemeanor to
unlawfully disclose these confidential records.
glance it may appear that a conflict exists between §
54.1-108, which requires that only records of active
administrative investigations be kept confidential, and §
54.1-2400.2, requiring all records received or developed
during a DHP investigation to be kept confidential. An accepted
rule of statutory construction provides that a specific statute
is controlling over a more general statute.3 In the instant
case, § 54.1-108 applies generally to all records held
by any board under Title 54.1. Section 54.1-2400.2, on the
other hand, only applies to records relating to an investigation
or disciplinary proceeding of a health regulatory board within
DHP, and not all regulatory boards in Title 54.1. Therefore,
§ 54.1-2400.2 is the more specific statute, and would
control in the event of a conflict between this section and
the more general § 54.1-108. While § 54.1-108 sets
forth a general principle that records of active investigations
of any board under Title 54.1 must be withheld from public
disclosure, the General Assembly has made a more specific
finding in § 54.1-2400.2 that all records of investigations
-- and not just records of active investigations -- by boards
regulated by DHP must be withheld.
instances, statutes allowing records to be withheld also specifically
require that these same records be made available to the individual
who is the subject of the records. Examples of this requirement
can be found in the scholastic records exemption at subdivision
A 3 of § 2.2-3705, the personnel records exemption at
subdivision A 4 of § 2.2-3705, and the medical records
exemption at subdivision A 5 of § 2.2-3705. However,
neither the exemption in FOIA at subdivision A 13 of §
2.2-3705 for records of active investigations of DHP, the
exemption at § 54.1-108 for records of active investigations
of all boards within Title 54.1, nor the exemption at §
54.1-2400.2 for all records of investigations by DHP provide
that the records must be disclosed to the subject of the investigation.
Subsection A of § 54.1-2400.2 enumerates six situations
under which information concerning investigations or disciplinary
hearings may be disclosed; none of these six make any mention
of disclosure of the records because the requester is the
subject of those records. Therefore, I cannot interpret the
provisions relating to records of investigations of health
regulatory boards as allowing access to the subject thereof,
when the clear language of the statute indicates that such
records are to remain confidential.
support of the conclusion that the subject of an investigation
of a health regulatory board does not have a right of access
to investigative records are provisions within the Government
Data Collection and Dissemination Practices Act (GDCDPA),4
located in Chapter 38 of Title 2.2. Generally, a "data
subject" does have a right to access information gathered
about him by an "agency," as these terms are defined
in § 2.2-3801. Subdivision A 3 of § 2.2-3806 gives
a data subject the right to inspect all personal information
maintained by a given agency, and be informed of the source
of the information and the names of the recipients of this
information. However, subdivision 5 of § 2.2-3802 declares
that the GDCDPA does not apply to information [m]aintained
by agencies concerning persons required by law to be licensed
in the Commonwealth to engage in the practice of any profession.
As a licensee, the information gathered about you by the DHP
is not subject to the requirements of the GDCDPA, and you
do not have a right to inspect this information as a data
also ask whether a previous opinion issued by this office
establishes a precedent that all records relating to an administrative
investigation should be available to the subject of the investigation.
Advisory Opinion 02 (2003), issued January 23, 2003, concerned
access to records that were the basis of a disciplinary action
against an employee. In that opinion, the employee requested
certain records relating to her use of a text paging system.
The county, her employer, withheld the records under subdivision
A 8 of § 2.2-3705 on the grounds that the records were
compiled specifically for use in an active administrative
investigation relating to personnel matters. The exemption
at subdivision A 8 of § 2.2-3705 is a discretionary exemption
that may be used by an agency to deny access to records that
would hinder investigations of alleged misconduct by government
employees. However, the personnel records exemption at subdivision
A 4 of § 2.2-3705 states that access to personnel records
shall not be denied to the person who is the subject thereof.
Therefore, interpreting the discretionary exemption together
with the guaranteed right of access to the subject of personnel
records led to the conclusion that the personnel records must
be released to the employee, even though the records may be
part of an internal administrative investigation relating
to disciplining that employee.
instant question you have asked differs from the facts of
that opinion, and the conclusion reached in that opinion does
not establish precedent for a situation involving a regulatory
board and one of its licensees. In the facts in the above-discussed
advisory opinion, the requester was an employee, and her employer
was the entity conducting the investigation. The administrative
investigation related to general employment issues, and not
to a licensing investigation. In the facts you present, you
are not an employee of DHP. Instead, the investigation that
you mention relates to your status as a licensee, not an employee.
Construing the personnel exemption at subdivision A 4 of §
2.2-3705 narrowly, as is required by law, the plain language
of the exemption cannot be expanded to apply to both employees
and licensees. A personnel record held by an employer is quite
different from a licensing record held by a regulatory board.
Therefore, the guarantee of access to the subject of personnel
records does not provide licensees with the same right of
access to records held by a regulatory board. Furthermore,
the exemption cited by the county in the previously mentioned
opinion was a discretionary exemption, and the records could
have been released in the county's discretion. In the facts
that you present, DHP is prohibited from releasing
any records relating to an administrative investigation, and
unlawful dissemination of such records is subject to criminal
penalty. The conclusion in Advisory Opinion 02 (2003) that
the records must be released to the subject of the administrative
investigation does not establish the precedent that records
related to any type of administrative investigation, such
as a licensing investigation by a regulatory board, must be
released to the subject of the records. The scope of that
opinion is limited to its specific facts of a disciplinary
investigation and action in an employment context. Therefore,
unless the subject of the records is given a specific statutory
right of access, the prohibition against release cannot be
interpreted to provide you with a right of access to licensing
records of which you are the subject.
you for contacting this office. I hope that I have been of
previously asked for the opinion of this office concerning
access to disciplinary files during an investigation by the
subject of the investigation. This office concluded that the
law did not allow for access to these records. See Freedom
of Information Advisory Opinion 30 (2001). Your current question
concerns access to these records by the subject after the
investigation is completed.
2This reference to "a board within Title 54.1"
would include all boards within both DPOR and DHP.
3See City of Roanoke v. Land, 137 Va. 89,
119 S.E. 59 (1923); 2001 Va. AG Lexis 47.
Act was previously named the Privacy Protection Act of 1976.