Sunrise over V.A. Capitol.



December 16, 2016

James Faughnan, Esq.
Faughnan Mendicino, PLLC
Dulles, 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 letter dated August 5, 2016, electronic mail messages and attachments dated August 5 and October 13, 2016, and our telephone conversations on September 13 and December 9, 2016. Please note that when there are parties involved in an opinion other than the person or public body that requested the opinion, we generally try to contact the other parties as a courtesy to let them know an opinion has been requested. In this instance such contact was not possible as you did not identify the school system involved in this situation.

Dear Mr. Faughnan:

You have asked two questions of this office: "(i) whether a Virginia school board must produce to its teacher employee documents and records the school board received, reviewed, prepared, or relied on during its investigation of a complaint that the teacher physically mistreated a student in her class; and (ii) whether Virginia’s Government Data Collection and Dissemination Practices Act, Va. Code Ann. § 2.2-3800 et seq., applies to Virginia school boards." To summarize the background facts you provided, you indicated that the teacher has been employed by the school board for over 20 years and prior to October, 2014 there had been no allegations that the teacher had abused or mistreated any student. On October 3, 2014, a parent contacted a school supervisor and alleged that the teacher had physically mistreated a student in the teacher's class. The school informed the teacher that a report had been filed with Child Protective Services (CPS) on the same date. The teacher was placed on administrative leave pending investigation of the matter. Later that month the school informed the teacher that the CPS investigation determined that the allegation was unfounded, as did the school's own investigation conducted by the school's Department of Personnel Services. The teacher returned to work on October 20, 2014. On November 5, 2014 a second allegation of mistreatment of a student was made against the teacher by a parent. Again, a report was made to CPS and the teacher was placed on administrative leave. CPS notified the teacher by letter dated January 20, 2015 that its investigation determined that the second allegation was also unfounded. On February 10, 2015 the school notified the teacher that CPS had determined the second allegation was unfounded, and that the school did not conduct its own separate investigation of the second allegation. The teacher returned to work February 11, 2015 but was placed in a different position at a different school. Also in February, 2015, you indicated the teacher made a request for public records in two parts under the Virginia Freedom of Information Act (FOIA) and the Government Data Collection and Dissemination Practices Act (GDCDPA). The first request asked for "all documents and other tangible items located in the teacher’s personnel file." The second asked for "all documents and other tangible items received, reviewed, prepared, or relied on by the Department of Human Resources relating to its October 2014 investigation of the allegation that the teacher mistreated a student including, but not limited to, all related notes, recordings, and photographs."1 You stated the school replied by providing "(i) documents the school board represents it maintains in the teacher’s central file; and (ii) a one-page document that the school board refers to as the “[Teacher] Investigation Summary” (the “Investigation Summary”)." However, you stated that you believe the Investigation Summary was created after the teacher's request was made, and that the school has additional responsive documents that it did not provide. Specifically, you indicated that you believe the school has an investigation file containing, "among other things: (i) the allegations made against the teacher; (ii) the identity of the person(s) making those allegations; (iii) investigator(s) notes of the allegations made against the teacher; and (iv) investigator(s) notes of interviews conducted with employees and others."

Your initial letter to this office did not indicate that the school had cited any exemptions or that the school denied the existence of additional records. However, the electronic mail message dated October 13, 2016 included a document that purports to outline the school board's responses (the "response outline") denying access to some of the records the teacher requested.2 The response outline describes several different types of records and corresponding exemptions which you indicated summarize arguments made by the school in responding to the teacher's requests. In addition to various provisions of FOIA, this response outline mentions records withheld pursuant to social services laws,3 the GDCDPA,4 a limitation on access to pupil records,5 the federal Family Educational Rights and Privacy Act (FERPA) and regulations,6 and a United States Supreme Court case addressing constitutional property rights.7 Unfortunately, because this office is limited to providing advisory opinions and guidance regarding FOIA, we cannot offer an advisory opinion on matters that fall outside of FOIA. Specifically, subdivision 1 of § 30-179 grants the FOIA Council the authority to "Furnish, upon request, advisory opinions or guidelines, and other appropriate information regarding [FOIA] to any person or agency of state or local government, in an expeditious manner." We do consider other laws as they interact with FOIA, particularly because FOIA itself provides in subsection A of § 2.2-3704 that public records must be disclosed "[e]xcept as otherwise specifically provided by law." Therefore to the extent other laws provide an exemption from mandatory disclosure or prohibit the release of certain records, such laws are recognized by FOIA. However, we cannot offer independent interpretations of those laws which fall outside of FOIA. Therefore we cannot offer an opinion regarding your second question as to whether a school board is subject to GDCDPA.

Returning to you first question, which does fall squarely under FOIA, we must first note that the policy of FOIA stated in subsection B of § 2.2-3700 is to ensure "ready access to public records in the custody of a public body or its officers and employees" and that "[a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked." Regarding exemptions, the policy states that "[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." The definition of "public body" in § 2.2-3701 specifically includes "school boards," leaving no question that the school is subject to FOIA. Similarly, the definition of "public record" in the same section includes "all writings and recordings that consist of letters, words or numbers, or their equivalent...however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." Your question was "whether a Virginia school board must produce to its teacher employee documents and records the school board received, reviewed, prepared, or relied on during its investigation of a complaint that the teacher physically mistreated a student in her class." It appears clear that allegations of mistreatment of a student by a teacher and the corresponding investigations of those allegations by the school concern the transaction of the public business of a school. To the extent CPS shared records with the school about CPS' investigations of the same allegations, those records would also be in the possession of the school in the transaction of public business. Applying the policy and definitions quoted above, records of those allegations and investigations prepared, owned, or possessed by the school would be public records subject to disclosure under FOIA unless there is a specific exemption that allows them to be withheld.

Before considering individual exemptions, let us first consider the Investigation Summary provided to you by the school. You stated that you believe that the school created the Investigation Summary after the teacher requested records. Consider first that if the Investigation Summary did in fact exist at the time of the request, then providing it was the proper response. In the alternative, if the Investigation Record did not exist at the time of the request, note that subsection D of § 2.2-3704 provides that "no public body shall be required to create a new record if the record does not already exist." The same subsection goes on to provide that "a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body." You did not indicate that the school and the teacher had reached any agreement regarding abstracting or summarizing existing records to create the Investigation Summary. As quoted above, a public body is not required to create new records in order to respond to a request. If a public body intends to charge for the creation of a new record, to provide a new record in lieu of providing other existing records, or if there are other terms to be worked out involving the creation of a new record, then the public body must seek an agreement with the requester on such terms and conditions beforehand. In this instance, you did not indicate that there was any such agreement. Therefore it appears from the limited facts available that if in fact the Investigation Summary was created after the request was made, then the school voluntarily created the Investigation Summary and provided it to the teacher. FOIA does not prevent a public body from voluntarily creating a record and providing it to a requester. However, unless there is an agreement with the requester to do otherwise, a public body still must produce any records that already exist at the time of the request unless those records are exempt from mandatory disclosure. If the Investigation Summary was provided in lieu of providing other responsive records that were not exempt and there was no agreement with the requester to do so, that would not be a proper response.

Returning to consider the response outline previously mentioned, that document listed two FOIA exemptions that you indicated were used by the school to withhold records: (1) the work product exemption for certain records "compiled specifically ... for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711," subdivision 3 of § 2.2-3705.1, and (2) the scholastic records exemption, subdivision 1 of § 2.2-3705.4. Addressing the first exemption mentioned, the exemption excludes from mandatory disclosure certain records compiled specifically "for use in an active administrative investigation."8 [Emphasis added.] You indicated that the teacher's request was made in February, 2015, after the teacher had been notified that the investigations of both allegations had been concluded and determined to be unfounded. Based on these facts, it appears that the investigations were no longer active at the time the request was made, and therefore this exemption would not apply in this instance.9

Turning to the scholastic records exemption, that exemption states in relevant part that the following records are excluded from mandatory disclosure but may be disclosed in the discretion of the custodian: "Scholastic 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." The term "scholastic records" is defined in § 2.2-3701 to mean "those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution." While the exact contents of the records that were withheld are unknown, it appears from the response outline you provided that records withheld as scholastic records include a "parent email, investigative report, and interviewer notes and attachments." You stated that the teacher was alleged to have physically mistreated a student, so it follows that the records must necessarily contain information relating to both the student and the teacher involved. It is unknown whether the records of the allegations and subsequent investigations specifically identify the student involved. Additionally, such records might contain information concerning other students or school personnel (for example, witnesses to the alleged incidents or others who may have been interviewed). If they do not identify any individual student(s), then they are not exempt under the terms of the scholastic records exemption. However, to the extent these records are maintained by the school and contain some information directly related to an identifiable student, those portions are exempt "scholastic records." Such scholastic records that concern identifiable students are exempt from mandatory disclosure to anyone other than the student and his or her parent or legal guardian in accordance with subdivision 1 of § 2.2-3705.4.

However, as the allegations were directed at the teacher, the records of those allegations must necessarily involve the teacher. Additionally, as noted above, it is possible that the records contain information concerning other school personnel. Therefore we must also consider the personnel records exemption, subdivision 1 of § 2.2-3705.1, which excludes from mandatory disclosure "[p]ersonnel information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof." You stated that the school did provide "documents the school board represents it maintains in the teacher's central file" but you believe that the school withheld other documents related to the allegations and investigations. A prior opinion of the Attorney General determined that an anonymous complaint letter from a parent alleging that students had seen a teacher smoking marijuana between classes was a personnel record that must be disclosed to the teacher upon proper request.10 Following that opinion, it would appear that any records of the allegations against the teacher in this instance would also be a personnel record that must be disclosed to the subject. Under the terms of the personnel records exemption, because the teacher is the subject of her own personnel records, she "shall not be denied" access to them, but they could be withheld from others. Thus an apparent conflict arises between the personnel and scholastic records exemptions, which may both apply to the same record(s) in this instance (if both the teacher and the student are identified in the records), and which would appear to simultaneously allow the records to be withheld yet require they be disclosed to their subjects.11 In order to reconcile this apparent conflict, take note of the rule of redaction as enacted by the General Assembly this year in new § 2.2-3704.01:

No provision of this chapter is intended, nor shall it be construed or applied, to authorize a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by this chapter or by any other provision of law. A public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record. Otherwise, only those portions of the public record containing information subject to an exclusion under this chapter or other provision of law may be withheld, and all portions of the public record that are not so excluded shall be disclosed.

Therefore to the extent that the records at issue concern only the teacher and are the teacher's personnel records, they must be disclosed to the teacher. To the extent they are scholastic records of an identifiable student and do not concern the teacher, they are exempt from mandatory disclosure to the teacher. To the extent they may overlap and concern both, we must apply maxims of statutory construction as set out by the Supreme Court of Virginia:

The primary objective of statutory construction is to ascertain and give effect to legislative intent. When a given controversy involves a number of related statutes, they should be read and construed together in order to give full meaning, force, and effect to each. Therefore we accord each statute, insofar as possible, a meaning that does not conflict with any other statute. When two statutes seemingly conflict, they should be harmonized, if at all possible, to give effect to both.12

Construing these statutory exemptions together to give effect to both, and applying the rule of redaction as well as FOIA's direction to narrowly construe exemptions, the solution appears to be to redact those portions of the records which are scholastic records while disclosing to the teacher those portions which are the teacher's own personnel records. In analyzing the interaction of these exemptions through the lens of FOIA, we also must consider as a practical matter whether the teacher already knows the identity of the student involved in these alleged incidents. If so, then redacting information that could identify the student would serve no practical purpose. We must also keep in mind that even when records are exempt from mandatory disclosure under FOIA, FOIA permits exempt records to be disclosed in the discretion of the custodian. Therefore, as a practical matter of best practices under FOIA, records to which both the scholastic and personnel exemptions apply simultaneously may be disclosed to the teacher without redacting identifying information if the identity of the student is already known to the teacher, unless some other law prohibits such disclosure. However, if any student identified in the records is anonymous to the teacher, then that anonymity may be maintained and any portions of the record that would identify the student(s) may be withheld as scholastic records.13 As will be further discussed below, the application of other laws outside of FOIA may lead to a different conclusion.

As stated above, this office cannot offer independent interpretations and guidance regarding statutes outside of FOIA, but we do take note of such statutes as they interact with FOIA. For example, you related that the school had cited §§ 63.2-104, 63.2-1514, and 63.2-1515 in regard to withholding CPS records. Although they were not mentioned, note that subdivisions 3 and 14 of § 2.2-3705.5 within FOIA cross-reference § 63.2-104 and exempt from mandatory disclosure records to which it applies. Further note that § 63.2-104 plainly states that "records, information and statistical registries of the Department [of Social Services], local departments and of all child-welfare agencies concerning social services to or on behalf of individuals shall be confidential information" and sets out a Class 1 misdemeanor penalty for disclosure in violation of § 63.2-104 or 63.2-105. I would further note without interpretation that § 63.2-1515 appears to address the retention of records of unfounded complaints and provides mechanisms for the subject of such complaints to access those records. Additionally, note that § 22.1-287 also appears to establish rules regarding access to student records by first establishing a general prohibition on access then setting forth rules for who may access pupil records, and what types of records may be disclosed. Relevant to your inquiry note that subdivision A 4 of § 22.1-287 provides as follows:

A. No teacher, principal or employee of any public school nor any school board member shall permit access to any records concerning any particular pupil enrolled in the school in any class to any person except under judicial process unless the person is one of the following:

* * *

4. The current teachers of such pupil;

You indicated that the teacher has been transferred and is no longer the teacher of the student in question. As described previously, and in contrast to § 22.1-287, the scholastic record exemption in FOIA excludes scholastic records from mandatory disclosure, but still allows the custodian to disclose those records in his discretion. Given the factual background you provided, consideration of both FOIA and § 22.1-287 together raises the question of whether the school can release under FOIA the teacher's own personnel records to the teacher if those records also contain scholastic records (as we advise above), or whether the teacher must first get a court order because of the limitations on access imposed under § 22.1-287. Research did not reveal any Virginia court precedent or opinion of the Attorney General directly on point interpreting these provisions.14 As stated above, maxims of statutory construction would require this section to be read in conjunction with the scholastic records provisions of FOIA, as well as federal laws on access to student records such as FERPA. Finally, although you did not mention it, we must also note that in researching this opinion we became aware of § 22.1-295.1, subsection B of which provides as follows:

Information determined to be unfounded after a reasonable administrative review shall not be maintained in any employee personnel file, but may be retained in a separate sealed file by the administration if such information alleges civil or criminal offenses. Any dispute over such unfounded information exclusive of opinions retained in the personnel file, or in a separate sealed file, notwithstanding the provisions of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.), shall be settled through the employee grievance procedure as provided in §§ 22.1-306 and 22.1-308 through 22.1-314.

This section appears to address access under the GDCDPA rather than under FOIA, and appears to provide an alternative mechanism to access records through the employee grievance procedure. It is unclear how or whether this provision affects access under FOIA. Unfortunately, while we may take note of these laws that may have some independent bearing on access to these records, this office is not the proper agency to render an interpretation of these myriad laws because of the limitation on this office's statutory authority to FOIA matters.

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



Maria J.K. Everett
Executive Director

1I note that in your letter to this office you referred first to the school's "Department of Personnel Services" and later to "the Department of Human Resources," both in reference to the school's investigation of the October allegation. It is presumed in context for purposes of this opinion that there was a single investigation of the October allegation by the school and these two Departments are actually the same, rather than separate investigations conducted by two different Departments within the school.
2As copies of the school's actual responses were not provided, we must emphasize that this opinion is based solely on the materials you provided and the facts you presented therein.
3Va. Code §§ 63.2-104, 63.2-1514, and 63.2-1515.
4Va. Code §§ 2.2-3801, 2.2-3806, and various opinions regarding the GDCDPA.
Va. Code § 22.1-287.
620 U.S.C. 1232g and 34 CFR Part 99, respectively.
7Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
8Note that that the same exemption also covers certain records "compiled specifically for use in litigation." This other aspect of the exemption does not depend on whether the investigations are "active" or concluded. However, the materials you provided imply that the school did not rely upon the aspect of the exemption applicable to litigation materials, and so for purposes of this opinion we consider only the aspect of the exemption that applies to "an active administrative investigation." See Virginia-Pilot Media Cos., L.L.C. v. City of Norfolk School Board, 81 Va. Cir. 450, 461 (Norfolk 2010)("Additionally, the language of § 2.2-3705.1(3) appears clear and unambiguous on its face; the word 'active' modifies only the term 'administrative investigation', and not the term 'litigation,' which itself may be anticipated, or planned, active, or concluded.").
9Note that we are aware that there have been at least two different interpretations of the use of the term "active" in the context of different administrative investigation exemptions from different Circuit Courts. See Virginian-Pilot, id. and McChrystal v. Fairfax County Bd. of Supervisors, 67 Va. Cir. 171 (Fairfax 2005). Specifically, the Virginian-Pilot case addressed subdivision 3 of § 2.2-3705.1, which is the exemption at issue here, while McChrystal considered the exemption for administrative investigations of employment discrimination matters, subdivision 3 of § 2.2-3705.3.
101983-1984 Op. Atty. Gen. Va. 437.
11Note that the same type of conflict may arise if a personnel record contains information about multiple employees, in that an employee is entitled to his or her own personnel records under FOIA but not to the personnel records of others. A similar analysis would apply in that situation, but is not directly addressed in this opinion because it does not appear from the facts provided that the school relied on the personnel records exemption as a reason to withhold records.
12Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (Va. 2013)(quoting Conger v. Barrett, 280 Va. 627, 630-31, 702 S.E.2d 117, 118 (2010)).

13As previously noted, the same type of analysis would apply if the records at issue contained personnel information concerning other employees. See n. 11, supra.
14The Supreme Court of Virginia considered both the scholastic records exemption in FOIA and § 22.1-287 in Wall v. Fairfax County School Bd., 252 Va. 156, 475 S.E.2d 803 (1996), but the case was factually distinct in that it concerned a request from a student for scholastic records of other students (which request, and petition for mandamus, were denied). In Bunch v. Artz, 71 Va. Cir. 358 (Portsmouth 2006), the Circuit Court for the City of Portsmouth considered § 22.1-287 and FERPA in the context of courtroom discovery procedures applied to third-party scholastic records, but that case did not involve FOIA. There are also several opinions of the Attorney General addressing various questions under § 22.1-287 and FERPA, but none appear to be directly applicable to your inquiry.