VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-29-01

June 7, 2001

Mr. Horace McGhee
Manassas, 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 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 assault.

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 records.

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 discretion.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ Virginia Freedom of Information Advisory Council AO-7 (2001).

² 20 U.S.C.A. § 1232g (1998).

³ See 20 U.S.C.A. § 1232g (1998). See also Va. Code Ann. § 22.1-287 (Michie 2000).