VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-13-04

July 14, 2004

Mr. Michael J. Garton
Chesapeake, 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 facsimile of March 24, 2004.

Dear Mr. Garton:

You have asked whether you may access copies of records related to your daughter's audition for admission to the theater department of a state-supported university under the Virginia Freedom of Information Act (FOIA).

You indicate that your daughter has been accepted to attend the university, but was required to audition to be accepted to the theater department to major in performance. Your daughter was not accepted into the department, and you requested copies of her audition and interview evaluation forms completed by each member of the audition committee. In addition, you requested a copy of the procedures given to the audition committee to be used in evaluating the candidates. You indicate that the university initially responded that it was not its policy to release the documents that you requested. You state that you sent a follow-up email, specifically requesting the records under FOIA, but that you have not received a response to this request. You ask if the evaluation forms must be released to the student or the student's parent, or if they are protected from disclosure.

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Subdivision 1 of § 2.2-3705.4 provides an exemption for [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 "scholastic records" at § 2.2-3701 as records containing information directly related to a student and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. These provisions in FOIA parallel the requirements of the federal Family Education Rights and Privacy Act (FERPA)¹, which applies to all educational institutions. FERPA establishes a general requirement that educational records are private, and may not be released to third parties. However, FERPA also requires that educational records be accessible to the subject of the record or the parents, if the student is under the age of 18. Federal regulations indicate that once a student turns 18 years or enrolls in an institution of post-secondary education, the right of access passes from the parent to the student.²

While FOIA and FERPA allow access to educational records by the subject of those records, both exclude from this requirement access to what are known as "sole possession records." Both FOIA and FERPA state that no student shall have access to...records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, which are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.³ Federal regulations interpret this to mean that records kept in the sole possession of the maker, which are used only as a personal member aid and are not accessible or revealed to any other person, need not be disclosed, even to the subject of the records.⁴ In the facts you present, records kept by the various audition committee members for their own personal use as a memory aid would not be available under FOIA or FERPA. However, this would not include notes and comments made on standardized audition scorecards or evaluation forms. Therefore, both FOIA and FERPA would require the release, to your daughter, of records relating to her audition, other than those created and maintained for an individual interviewer's sole use and possession. Furthermore, to the extent that they exist, written procedures and guidelines to be used by the members of the panel in evaluating auditions would be subject to disclosure to any requester, because such a record would not contain information concerning identifiable students and would not be protected by either FERPA or the scholastic records exemption under FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹20 USCA § 1232g.
²34 CFR § 99.5(a).
³See subdivision 1 of § 2.2-3705.4 and 20 USCA § 1232g (a)(4)(B), respectively
⁴34 CFR § 99.3.