VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-09

March 31, 2009

Kelly Wolff
General Manager
Educational Media Company at Virginia Tech, Inc.
Blacksburg, 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 correspondence of February 3, 2009.

Dear Ms. Wolff:

You have asked three questions pertaining to the denial of a records request you made to Virginia Polytechnic Institute and State University (Virginia Tech), each of which is addressed separately below. As background, you stated that on behalf of the student newspaper at Virginia Tech, the Collegiate Times, you requested the names and permanent addresses of all undergraduate transfer students who accepted admission to Virginia Tech for the spring 2009 term. You made your initial request by letter dated December 3, 2008. This request was denied by letter dated December 10, 2008, but while mentioning the Virginia Freedom of Information Act (FOIA) and the federal Family Education Rights and Privacy Act (FERPA)¹ the first denial did not cite a specific law allowing the requested records to be withheld. This denial letter indicated that lists of new students would be provided on

the first day of the term, which is the official matriculation date and follows FERPA guidelines. Students are not matriculated until the first day of enrollment. Any records related to their application or future matriculation is considered to be part of the Admissions package. Those records are provided an exclusion under the state's FOIA laws. Any information we have on students who have APPLIED for admission are not public until they actually enroll.

The names and addresses you have requested will be available on Tuesday, January 20, 2009, the first day of Spring 2009 classes.

You further inquired after these records by letter dated January 9, 2009. A second denial letter dated January 23, 2009, was sent which cited the scholastic records exemption in FOIA, subdivision 1 of § 2.2-3705.4. That letter further stated that acceptance of an offer for admission does not automatically matriculate an applicant into student status. After a student matriculates, at their discretion, directory information is made public via Virginia Tech's online directory. You indicated that you make similar requests every year, and that in years past you were given the requested records, but since 2007 your requests have been denied.²

In addressing your questions it is helpful first to set forth the relevant policy and procedure in regard to the denial of record requests under FOIA. The policy of FOIA promulgated by the General Assembly in subsection B of § 2.2-3700 states as follows:

Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked....Any 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 procedure set forth in subdivision B 1 of § 2.2-3704 requires that when a request is denied in its entirety, the response must be in writing and shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. Subdivision B 2 of the same section states that a response that withholds the records in part and provides the records in part shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. Reading this provisions together, whenever a request is denied, FOIA requires the subject of the withheld records and the specific Code section that authorizes withholding to be identified in writing.

In this case the first denial failed to cite a specific Code section as required, but the second denial letter cited the definition of scholastic records found in § 2.2-3701 and the scholastic records exemption found in subdivision 1 of § 2.2-3705.4. Section 2.2-3701 defines scholastic records to be those 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.³ The corresponding exemption found in subdivision 1 of § 2.2-3705.4 allows the public body to withhold

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....For scholastic records of students who are emancipated or attending a state-supported institution of higher education, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such records for inspection and copying.

While the first denial letter mentioned FERPA, it was not actually cited in either denial letter as the basis for denying your request.

Turning now to your specific questions, you first asked whether directory information may be withheld under the scholastic records exemption. The term directory information is not defined in FOIA or used within the scholastic records exemption.⁴ Looking outside of FOIA, Va. Code § 22.1-287.1 directly addresses this issue:

Notwithstanding §§ 22.1-287 and 22.1-288, directory information may be publicly released in accordance with federal law and regulations and the regulations of the Board of Education. Such directory information may include the student's name, sex, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and other similar information.⁵

As this definition includes name and address, it would appear to coincide with the records you requested from Virginia Tech.⁶ The Code sections referenced in the above quote, §§ 22.1-287 and 22.1-288, contain specific limitations on the dissemination of certain records.⁷ By contrast, as with other FOIA exemptions, the scholastic records exemption in FOIA is prefaced with the following language: the following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. The scholastic records exemption in FOIA is therefore a discretionary exemption, rather than a mandatory prohibition. However, it must be read in conjunction with other relevant laws that act as prohibitions upon release, such as §§ 22.1-287 and 22.1-288, and the relevant federal law. The end result, after giving effect to all of the applicable laws, is that it is mandatory to withhold scholastic records in those instances where specific prohibitions apply. In the context of this overall scheme, it thus becomes clear that § 22.1-287.1 acts as an exception to the prohibitions on release of scholastic records. In other words, where other provisions would bar the release of scholastic records including directory information, § 22.1-287.1 specifically allows directory information to be released under certain conditions in accordance with federal law and regulations and the regulations of the Board of Education.⁸

As quoted above, § 22.1-287.1 explicitly refers to and incorporates federal law and regulations. While an interpretation of federal law would be beyond the statutory authority of this office, the issue of how directory information is treated under FERPA has been raised previously, at which time this office contacted the relevant federal agency, the Family Policy Compliance Office within the federal Department of Education. That office advised that the dissemination of directory information is left to the discretion of the educational institution, and that such institution may release directory information under some circumstances but deny it in others. It was noted that the federal regulations relating to the release of directory information state that an educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance of the types of information designated as directory information and the right to refuse the release of such information.⁹ Reading these provisions together with the scholastic records exemption of FOIA previously quoted, it appears that directory information is a specific subset of scholastic records that may be withheld in the discretion of the custodian as a scholastic record,¹⁰ or released as allowed under § 22.1-287.1 and the relevant federal law and regulations.

Before proceeding further, I note that the various laws at issue are not consistent in their use of the term student or other, similar terms, nor are the terms used specifically defined for purposes of records access within the Code of Virginia. For example, as noted previously, §§ 22.1-287 and 22.1-288 refer to pupils, while § 22.1-287.1 instead uses the term student, and it appears that neither student nor pupil is defined for purposes of addressing access to records. Turning to common usage in the absence of a statutory definition, a student is defined as one who attends a school, college, or university.¹¹ A pupil is defined as a student under the direct supervision of a teacher.¹² Given this common usage, and without specific statutory definitions, it appears that the Code sections referenced are using the terms pupil and student interchangeably. Continuing this analysis, the scholastic records exemption and other exemptions in FOIA use the term student, but do not define it; the term pupil is not found within FOIA. Elsewhere in the Code of Virginia, there appear several specialized usages of the word student and similar terms but research revealed no general definition relevant to the records access issues presented in this opinion.¹³ Turning to federal law as referenced in the denial letters, FERPA states in 20 U.S.C. § 1232g (a)(6) that the term "student" includes any person with respect to whom an educational agency or institution maintains educational records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution. The federal regulations implementing FERPA, 34 C.F.R. § 99.3, state that student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records. Based upon the denial letters you have received, it would appear that these federal definitions are those relied upon by Virginia Tech in its assertion that the transfer students were not in fact students until the first day of classes. Because this office lacks the statutory authority to offer opinions interpreting laws outside of FOIA, and for purposes of this opinion, it is therefore presumed that denial letters are correct that persons who have not yet matriculated are not students until they do so.¹⁴

Turning now to your second question, you observe that there appears to be a contradiction inherent in the denial of your request, in that the denial simultaneously asserts that the persons whose records you seek are not students but their directory information is protected as scholastic records. In light of this apparent contradiction, you have asked whether the directory information of persons who are not students may be protected as scholastic records. As quoted above, part of the definition of scholastic records is that they are those records containing information directly related to a student. Therefore, following the FOIA policy that any exemption from public access to records or meetings shall be narrowly construed, if a record does not contain information related to a student, by definition it is not a scholastic record and cannot be held exempt as such. Similarly, § 22.1-287.1 indicates that directory information may include the student's name, sex, address...and other similar information. [Emphasis added.] It would therefore appear that to be directory information, the information likewise must be that of a student. It follows then that the denial of your request would appear to be self-contradictory in that it asserts the scholastic records exemption, which only applies to records relating to students, while simultaneously asserting that the persons whose records are sought are not students.

However, the phrasing of this question glosses over the fact that there were two denial letters, rather than a single denial of your request. This is critical to the analysis of the denials because the different dates of the denial letters correspond to a fundamental change in the underlying facts. As described above, the first denial letter was sent December 10, 2008. This letter asserted that the persons whose records you requested were not yet students at Virginia Tech and denied your request, but failed to cite any specific Code section that would allow the requested records to be withheld, as required under the provisions of § 2.2-3704. While it was deficient in that it thus failed to comply with the statutory requirements of FOIA, it cannot be stated that the first denial letter was self-contradictory, because while it made the assertion that the persons were not students, it did not actually cite the scholastic records exemption.¹⁵ The second denial letter was dated January 23, 2009. Note that the first denial letter indicated that the persons whose records you sought would matriculate and be considered students at Virginia Tech on the first day of classes for the spring term, January 20, 2009. Given that fact, it therefore appears that as of January 23, 2009, the date of the second denial letter, the persons whose records you sought were in fact students. Therefore, when the second denial letter was sent, Virginia Tech could properly choose to invoke the scholastic records exemption to withhold the requested records. Based on this analysis, the second denial letter also was not inherently self-contradictory. As it was issued after the stated matriculation date, the persons whose records you sought were students at Virginia Tech at that time. It follows that records related to those students and maintained by Virginia Tech at that time would be considered scholastic records as defined in FOIA.¹⁶

Your final question asked whether any portion of FOIA allows the withholding of the directory information you requested. As stated above, it would appear that directory information may be withheld as a scholastic record, and its dissemination may also be subject to federal law and regulation. However, if the assertion that the individuals in question are not in fact students until they matriculate on the first day of classes is correct, then it would appear that the names and addresses you originally sought were not actually directory information under existing law, at least not until the matriculation date when the persons were considered students (in this instance, January 20, 2009). There do not appear to be any provisions of law addressing how this information is to be treated while their status is that of applicants who are not yet matriculated as students. Following the general policy of FOIA, such records must be presumed open unless a specific exemption applies to them. As stated above, the scholastic records exemption cannot apply if the subjects of the records in question are not students. The initial denial letter you received stated that those records are provided an exclusion under the state's FOIA laws, but it did not cite a specific Code section as authority for this assertion. I know of no other specific exemption within the Code that would apply to these records of applicants who are not yet students. However, note that records transferred from other schools, such as transcripts, may be protected as scholastic records because the persons in question either are or were students in attendance at the other schools which maintain the records.¹⁷ It is other records, such as application materials newly generated, that appear to lack such protection. While it seems somewhat illogical to assert that these records may be protected on the first day of classes but not the day before, that appears to be the current state of the law. As such, it is up to the General Assembly to decide as a matter of public policy whether this is the intended result.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹20 U.S.C. § 1232g.
²As the records you sought this year would have been made available in January, it would appear that in this particular instance the questions about this request are now moot. However, because it appears that there is an ongoing pattern of denial, the questions you present are likely to recur.
³Note that § 22.1-289, concerning the transfer and management of scholastic records, uses a definition that is similar, but not identical: "Scholastic record" means those records that are directly related to a student and are maintained by an educational agency or institution or by a party acting for the agency or institution. These include, but are not limited to, documentation pertinent to the educational growth and development of students as they progress through school, student disciplinary records, achievement and test data, cumulative health records, reports of assessments for eligibility for special education services, and Individualized Education Programs. Such records may be recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.
A notice of adjudication or conviction received by a superintendent relating to an incident which did not occur on school property or during a school-sponsored activity shall not be a part of a student's scholastic record.
The term "scholastic record" also shall not include records of instructional, supervisory, administrative, and ancillary educational personnel that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.
⁴The only reference to directory information found in FOIA is in subdivision 22 of § 2.2-3705.7, which provides an exemption for certain records of parks and recreation departments and authorities that contain identifying information concerning persons under 18 years of age. That exemption explicitly references FERPA, but otherwise is not relevant to the issues under consideration in this opinion.
⁵While not identical, the directory information described in § 22.1-287.1 coincides closely with the definition in FERPA, which states at 20 U.S.C. § 1232g (a)(5)(A) that the term "directory information" relating to a student includes the following: the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.
⁶Note, however, that Title 22.1 of the Code is generally understood to apply to public school students through high school, while Title 23 addresses public institutions of higher education. This distinction is not made explicit within §§ 22.1-287 through 22.1-289, and there appear to be no equivalent sections addressing scholastic records or directory information within Title 23.
⁷Section 22.1-287 prohibits access to any records concerning any particular pupil enrolled in the school in any class to any person except as provided therein. Section 22.1-288 permits the furnishing of the names and addresses of pupils presently enrolled or pupils who have terminated their enrollment to certain representatives of schools, colleges, universities, private businesses and the military, and imposes limits on any further use by those representatives. Note that both §§ 22.1-287 and 22.1-288 refer to pupils, rather than to students. By contrast, § 22.1-287.1 refers to students. The usage of these terms is examined in greater detail hereinafter.
⁸It does not appear that the Board of Education has passed regulations specific to the handling of directory information. Other Board of Education regulations regarding scholastic records refer to FERPA, the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485, and relevant provisions of Virginia law. See 8 Va. Admin. Code § 20-150-10 through 8 Va. Admin. Code § 20-150-30.
⁹Freedom of Information Advisory Opinion 33 (2001)(quoting 34 C.F.R. § 99.37(a))(based on a subsequent conversation with the same federal office in March, 2009, this opinion remains correct).
¹⁰However, as stated in the scholastic records exemption, an individual subject who is 18 years old or older may waive the protections of the exemption in writing.
¹¹The American Heritage Dictionary 1208 (2nd College ed. 1982).
¹²Id. at 1005.
¹³See, e.g. § 22.1-1 (defining persons of school age); § 22.1-188 (including school bus patrolmen in the definition of school pupils and personnel); § 22.1-212.5 (defining at-risk pupil); § 22.1-271.1 (defining student in the context of required immunizations); § 23-7.4 (defining dependent student and independent student for purposes of in-state tuition charges); § 23-38.10:2 (defining student in the context of student loan funds); § 23-38.10:8 (defining student in the context of the two-year college transfer grant program). There does not appear to be a definition of general application for the term student, nor is there a particular definition given for purposes of determining access to records.
¹⁴Note that if this assertion is incorrect, and the opposite is true (i.e., that these transfer students are in fact students for purposes of the scholastic records exemption), then the conclusions that follow regarding access to scholastic records would necessarily differ. For example, one might argue that you have asked for the records of transfer students, therefore by the very terms of your request the records you seek must contain information directly related to a student and are therefore scholastic records. Stated otherwise, it could be argued that these transfer students are in fact students at some educational institution, just not students in attendance at Virginia Tech. Alternatively, one might also argue by analogy to the personnel records exemption at subdivision 1 of § 2.2-3705.1. That exemption has been interpreted to include records of current and former employees as well as job applicants, and uses statutory language similar to the scholastic records exemption. By analogy, then, the scholastic records exemption would protect the records of current and former students, as well as applicants for admission. However, given the facts you have presented, particularly the given assertion that these transfer students are not students, these arguments are not before us at this time.
¹⁵Hypothetically, if the first denial letter had cited the scholastic records exemption while at the same time asserting that the records in question were not records related to students, that would be contradictory to the definition of scholastic records, as previously stated, but those are not the facts before us.
¹⁶While denying your request, the second denial letter also indicated that after matriculation, directory information is made public via Virginia tech's online directory. Pursuant to subsection A of § 2.2-3704, FOIA grants the requester the right to inspect or get copies of public records, at the requester's option. Stating that records are or will be available online is not the same as providing them to the requester for inspection and copying as contemplated by FOIA, as it requires that the requester take additional steps to access the records. If the records are going to be provided, then making them available online is only a sufficient response if the requester agrees to it as the means of production. Otherwise, the public body must provide records directly to the requester for inspection or copying.
¹⁷Note also § 23-2.1:3, regarding access to students' high school records: Each public and private institution of higher education may require that any student accepted to and who has committed to attend, or is attending, such institution provide, to the extent available, from the originating school a complete student record, including any mental health records held by the school. These records shall be kept confidential as required by state and federal law, including the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.