VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-11-04

June 10, 2004

Mr. Kevin M. Cusce
Yorktown, 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 of March 3, 2004.

Dear Mr. Cusce:

You have asked a question concerning access to records relating to a regulatory investigation under the Virginia Freedom of Information Act (FOIA).

Specifically, 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.

You argue 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.

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. 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.

At first 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.

In certain 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.

In further 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 subject.

You 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.

The 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.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹You 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.
⁴This Act was previously named the Privacy Protection Act of 1976.