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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-18
August
9, 2018
Dewi
Cardenas
Alexandria, 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 messages dated July
10, 2018.
Dear
Ms. Cardenas:
You have asked for an advisory opinion regarding certain
records requested from the Board of Pharmacy (Board)
pursuant to the Freedom of Information Act (FOIA).
Questions Presented
You have asked whether the Board may withhold application
forms for medical cannabis pharmaceutical processor
permits pursuant to § 54.1-108 of the Code of
Virginia. You have also asked who makes the decision
that this particular information is confidential or
not subject to the disclosure provisions of FOIA.
Finally, you have expressed concerns regarding the
permitting process of such permits and have asked
for an opinion regarding those concerns.
Factual Background
On June 8, 2018, you submitted a request for records
pursuant to FOIA to the Board's FOIA Officer. In that
request, you asked the Board for all application forms
for medical cannabis pharmaceutical processor permits
submitted by the deadline of 2:00 p.m. ET on June
8, 2018. The Board responded on June 18, 2018, stating
that the records are treated as confidential information
and exempt from FOIA pursuant to § 54.1-108 and
that the records would not be provided.
Applicable Law and Discussion
FOIA provides that all public records shall be open
to citizens of the Commonwealth except as otherwise
specifically provided by law.1 Section 54.1-108 states
that "Applications for admission to examinations
or for licensure, certification, registration, or
permitting and the scoring records maintained by any
board or by the [Department of Professional and Occupational
Regulation or the Department of Health Professions]
on individuals or applicants" are exempt from
the disclosure provisions of FOIA. The legislature
has therefore decided that these types of records
are not subject to the disclosure provisions of FOIA
and provided for this in § 54.1-108.2
Disclosure
of the records you have requested is therefore governed
by § 54.1-108 as they are copies of applications
for permits for medical cannabis pharmaceutical processor
as part of the application and permitting processes
for the Board under the Department of Health Professions.3
It therefore appears that the records were properly
withheld pursuant to that exemption on the basis of
the given facts.
You have also expressed various concerns regarding
the policies behind the particular permitting process
for medical cannabis pharmaceutical processors. The
Virginia Freedom of Information Advisory Council has
the authority to furnish advisory opinions regarding
the application and interpretation of FOIA. To the
extent that your questions involve policy issues of
particular permits and regulations under the Board
and the Department of Health Professions, it is outside
the scope and authority of this office to offer an
opinion.
Conclusion
The General Assembly made the decision to exempt certain
records maintained by particular boards and the Department
of Health Professions from the disclosure requirements
of FOIA and codified that language in § 54.1-108.
Application forms for medical cannabis pharmaceutical
processor permits clearly fall under the exemption
provisions of § 54.1-108 as involving the application
and permitting process of a board within the Department
of Health Professions. The records were therefore
properly withheld on the basis of the given facts.
With regard to your questions relating to the policy
issues of particular permits and regulations under
the Board and the Department of Health Professions,
it is outside the scope and authority of this office
to offer an opinion.
Thank you for contacting this office. We hope that
we have been of assistance.
Sincerely,
Chad
M. Ayers
Attorney
Alan
Gernhardt
Executive Director
1r§
2.2-3704 of the Code of Virginia.
2Note that subdivision 2 of § 54.1-108,
which governs the records you requested, allows the
Department of Health Professions or the Board to make
the records available for copying by the subject individual
or applicant. That does not appear to be the case
in this situation, however, since you are requesting
permit applications for which you are not the subject
individual or applicant.
3See § 54.1-2503 (stating
that the Board of Pharmacy is included in Title 54.1
within the Department of Health Professions).
See also Freedom of Information Advisory Opinion
26 (2004) (discussing the statutory discretion of
the Virginia Board of Bar Examiners in deciding whether
to release bar examination scores pursuant to §
54.1-108).
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