VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-03-05

March 30, 2005

Rick Pugh
Richmond, Virginia

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 electronic mail of February 26, 2005 and the attachments included therein.

Dear Mr. Pugh:

You have asked whether the Virginia Freedom of Information Act (FOIA) requires a state agency to provide a copy of an employment reference at the request of the subject of that reference. You indicate that reference information is generally kept in a confidential recruitment file, separate from an employee's personnel file. References may take the form of written letters, but often are transcribed notes of telephone conversations. References are considered in making employment decisions in competitive recruitment, and may concern existing employees of the agency, employees of another agency, or outside candidates. You asked about the application of the FOIA exemption found in subdivision 2 of § 2.2-3705.4, which, compared to the general exemption for personnel records found in subdivision 1 of § 3705.1, you feel leads to disparate treatment of different state agencies. You also asked specifically about the interaction of FOIA and subsection B of § 2.2-3806 of the Government Data Collection and Dissemination Practices Act (GDCDPA).¹

The general policy under FOIA as stated in § 2.2-3700 of the Code of Virginia is that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked....Any exemption from public access to records or meetings shall be narrowly construed. Specifically in regard to records access, subsection 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 during the regular office hours of the custodian of such records. Subdivision 1 of § 2.2-3705.1 provides an exemption for [p]ersonnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. The general rule under FOIA is thus that personnel records must be disclosed at the request of the subject of those records, although such records may be withheld from other requesters. Because recommendations and letters of reference contain information concerning identifiable individuals, they are treated as personnel records under FOIA.² Unless some other provision exempts employment references, they must be disclosed to their subject just as any other personnel record concerning the subject must be disclosed.

One such other provision is found within FOIA. Subsection 2 of § 2.2-3705.4 provides a discretionary disclosure exemption for [c]onfidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to any educational agency or institution, (ii) an application for employment, or (iii) receipt of an honor or honorary recognition. This language was added to FOIA in 1975, as subsection b 6 of § 2.1-342, by passage of Senate Bill 896.³ The language as enacted has remained unchanged to this date, although the Code section numbering has been changed. The history of S.B. 896⁴ indicates that this exemption was added to FOIA in direct response to the passage of the federal Family Educational Rights and Privacy Act (FERPA), now codified at 20 U.S.C. § 1232g. FERPA states that confidential letters and statements of recommendation, which were placed in the education records prior to January 1, 1975, if such letters or statements are not used for purposes other than those for which they were specifically intended shall not be made available to students in institutions of postsecondary education.⁵ The next subsection of FERPA appears to apply to such recommendations after January 1, 1975, and states that if a student has signed a waiver of access, then confidential recommendations (I) respecting admission to any educational agency or institution, (II) respecting an application for employment, and (III) respecting the receipt of an honor or honorary recognition are also unavailable to the student.⁶ It appears that the wording of the FOIA exemption in subdivision 2 of § 2.2-3705.4 was based on both of these FERPA subsections, considering the linguistic similarities between them.

The history of SB 896 further indicates that amendments to FERPA were expected. The Virginia FOIA exemption was written broadly so that its language would be flexible enough to accommodate amendments to FERPA, without further amendment to the Virginia law. While FERPA specifically refers to "students in institutions of postsecondary education," the language of limitation in the Virginia law refers instead to "records of educational agencies or institutions" without mentioning "students." As a consequence, the Virginia law is not limited solely to students' records. The exemption in subdivision 2 of § 2.2-3705.4 does not distinguish between students' records and employees' records, nor does it differentiate on the basis of whether the requester is the subject of the record or a third party. In your electronic mail you indicate that you feel that this exemption leads to disparate treatment of employees at different state agencies, depending on whether the agency is or is not an educational agency or institution. You are correct. Public bodies that are educational agencies or institutions may withhold confidential letters and statements of recommendation pursuant to subdivision 2 of § 2.2-3705.4, while public bodies that are not educational agencies or institutions may not invoke this exemption. Given its relationship to FERPA, it seems that this exemption may have been meant only to apply to records concerning students. However, the legislative history cannot supersede the plain language of the statute as enacted by the General Assembly, and so this office must interpret the exemption as applying to all applicable records of educational agencies or institutions, not just records concerning students.⁷

Next, addressing your question about subsection B of § 2.2-3806 of the GDCDPA: this provision does not prohibit the disclosure of any records under FOIA. While FOIA provides that access to records may be limited as otherwise specifically provided by law, subsection B of § 2.2-3806 contains no such limitation. In regard to letters of reference, subsection B of § 2.2-3806 states that [n]othing in this chapter [the GDCDPA] shall be construed to require an agency to disseminate any recommendation or letter of reference from or to a third party that is a part of the personnel file of any data subject. The GDCDPA thus does not require that an agency disclose any recommendation or letter of reference to the subject, nor does it prevent such disclosure. Subsection B must be interpreted in context with the rest of § 2.2-3806.⁸ Subsection A of § 2.2-3806 gives a data subject the right to inspect [a]ll personal information about that data subject except as provided in subdivision 1 of § 2.2-3705.1, subdivision 1 of § 2.2-3705.4, and subdivision 1 of § 2.2-3705.5.⁹ Thus subsection B of § 2.2-3806 refers to this right to inspect provided by subsection A of § 2.2-3806, clarifying that this right does not require an agency to disseminate to a data subject recommendations or letters of reference from or to third parties. The plain language used in subsection B of § 2.2-3806 limits its application to this chapter, meaning the GDCDPA. Because FOIA is a separate chapter within the Code, subsection B of § 2.2-3806 by its own terms of limitation does not apply to FOIA. Additionally, subsection A of § 2.2-3806 clearly references three provisions of FOIA, so it is apparent that the General Assembly considered FOIA in enacting the records access provisions of § 2.2-3806. If the General Assembly had meant for subsection B of § 2.2-3806 to limit access under FOIA, it would have used language appropriate to effectuate that intent. It did not do so. Thus, from the plain language and context of subsection B of § 2.2-3806, it is apparent that it refers to access rights granted under the GDCDPA and does not affect access rights granted by FOIA.

However, in your electronic mail you referred to a 1977 opinion of the Attorney General which concluded that State agencies may refuse to permit an agency employee to examine letters of recommendation contained in the employee's personnel records.¹⁰ In reaching this conclusion, the Attorney General relied on the language and legislative history of subsection B of § 2.2-3806.¹¹ The Attorney General quoted the Report of the Virginia Advisory Legislative Council (VALC), which studied the GDCDPA before it was enacted into law, and wherein the VALC expressed its concern that in affording individual access to personal information stored about such individual by the Commonwealth, such access should not be permitted to letters of recommendation or reference or similar writings, whether written by or to a State official or agency, which are used in evaluating an individual's suitability for employment. Such letters are, and ought to remain, confidential.¹² Unfortunately, the 1977 opinion did not provide an in-depth analysis of the language of the statute, nor did the VALC refer to legal authority in its Report for its assertion that [s]uch letters are, and ought to remain, confidential. While there is no confusion regarding the VALC's position that access should not be permitted to letters of recommendation or reference or similar writings, language to effectuate that intent does not appear in § 2.2-3806 as enacted. Because the actual language as enacted into law is controlling,¹³ this office must respectfully disagree with the conclusion of this 1977 opinion of the Attorney General.

You also referred to a 1983 opinion of the Attorney General which concluded that a school administrator must comply with [a] teacher's request to see [a school principal's handwritten notes and an anonymous complaint letter] that relate to him.¹⁴ That 1983 opinion was based solely upon the provisions of FOIA, and did not address the GDCDPA at all. You observed that the 1983 opinion is "at least arguably inconsistent" with the 1977 opinion regarding subsection B of § 2.2-3806. The Attorney General found that the handwritten notes and anonymous complaint letter were personnel records. Therefore, although not subject to mandatory disclosure to the public by virtue of the [personnel exemption], the personnel record of the teacher is available to the teacher himself.¹⁵ To address the apparent inconsistency with the 1977 opinion discussed above, note that in this 1983 opinion the Attorney General did not mention the exemption for [c]onfidential letters and statements of recommendation placed in the records of educational agencies or institutions found in FOIA, nor did he mention the provision of the GDCDPA concerning any recommendation or letter of reference. Although not explicitly stated, it therefore appears that the Attorney General did not consider the handwritten notes and anonymous complaint letter at issue to be recommendations or letters of reference. There being no recommendations or letters of reference at issue, neither the FOIA provision nor the GDCDPA provision concerning those types of records would apply in this situation considered by the Attorney General in 1983. Each of these two opinions of the Attorney General had a different factual basis that led to the application of different provisions of law. Given that distinction, there is no inconsistency between the 1983 opinion and the 1977 opinion previously discussed.

In conclusion, employment recommendations and letters of reference concerning identifiable individuals are treated as personnel records for FOIA purposes. While they may be withheld from general public disclosure in the discretion of the custodian, these records must be disclosed to the subject of the records pursuant to subdivision 1 of § 2.2-3705.1, unless another exemption applies. There is an exemption in subdivision 2 of § 2.2-3705.4 which provides that an educational agency or institution may withhold confidential letters and statements of recommendation from the subject of those records. Unlike other public bodies, an educational agency or institution therefore may withhold these records from their subject pursuant to this exemption.¹⁶ Finally, as discussed above, subsection B of § 2.2-3806 of the GDCDPA does not apply to FOIA, and cannot act as such a general exemption.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹The Government Data Collection and Dissemination Practices Act was formerly known as the Privacy Protection Act. Hereinafter the acronym "GDCDPA" shall be used to refer to both.
²The phrase personnel record is not separately defined in FOIA, but the exemption itself defines personnel record in part by being a record of an identifiable individual. See Freedom of Information Advisory Opinions 23 (2004) and 04 (2001)(both citing 1991 Op. Atty. Gen. Va. 9; 1981-1982 Op. Atty. Gen. Va. 433); Freedom of Information Advisory Opinion 07 (2002)(citing 1985-1986 Op. Atty. Gen. Va. 333; 1983-1984 Op. Atty. Gen. Va. 314).
³Virginia Acts of Assembly, ch. 307 (1975).
⁴This office thanks the patron of Senate Bill 896, the late Sen. Andrews, for giving his consent to use this information (as required by Va. Code § 30.28-18).
⁵20 U.S.C. § 1232g(a)(1)(C)(ii).
⁶D20 U.S.C. § 1232g(a)(1)(C)(iii).
⁷Yates v. Pitman Manufacturing, Inc., 257 Va. 601, 605, 514 S.E.2d 605, 607 (1999)("It is firmly established that, when a statute is clear and unambiguous, a court must accept its plain meaning and not resort to extrinsic evidence or rules of construction."); Town of Blackstone v. Southside Electric Cooperative, 256 Va. 527, 533, 506 S.E.2d 773, 776 (1998)("When considering a legislative act, a court may look only to the words of the statute to determine its meaning, and when the meaning is plain, resort to rules of construction, legislative history, and extrinsic evidence is impermissible.").
⁸"In the construction of statutes, the courts have but one object, to which all rules of construction are subservient, and that is to ascertain the will of the legislature, the true intent and meaning of the statute, which are to be gathered by giving to all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious and just in their operation." Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999)(quoting Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914))
⁹Va. Code § 2.2-3806(A)(3)(a)(referring to three specific FOIA provisions regarding access by the subject to his or her own records: subdivision 1 of § 2.2-3705.1 addresses personnel records; subdivision 1 of § 2.2-3705.4 addresses scholastic records; and subdivision 1 of § 2.2-3705.5 addresses health records).
¹⁰1976-1977 Op. Atty. Gen. Va. 210.
¹¹The opinion quotes § 2.1-382(B) of the Privacy Protection Act, which was subsequently re-codified as § 2.2-3806(B) of the GDCDPA. Section 2.1-382(B), as quoted, read as follows: Nothing in this section or found elsewhere in this chapter shall be construed so as to require an agency to disseminate any recommendation or letter of reference from or to a third party which is a part of the personnel file of any data subject.
¹²1976-1977 Op. Atty. Gen. Va. 210 (quoting the Report of the Virginia Advisory Legislative Council, Senate Document No. 27 (1976) at 9-10).
¹³Supra n. 7-8.
¹⁴1983-1984 Op. Atty. Gen. Va. 437.
¹⁵Id. (the opinion referred to subdivision b 3 of § 2.1-342, subsequently re-codified in subdivision 1 of § 2.2-3705.1.)
¹⁶Note that this opinion only addresses the questions presented. There may be other exemptions that apply to references and recommendations in other circumstances. For example, subdivision G 3 of § 2.2-3706 permits law-enforcement agencies to withhold [r]ecords of background investigations of applicants for law-enforcement agency employment or other confidential administrative investigations conducted pursuant to law.