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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-16
December
16, 2016
James
Faughnan, Esq.
Faughnan Mendicino, PLLC
Dulles, 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 dated August 5, 2016, electronic
mail messages and attachments dated August 5 and October
13, 2016, and our telephone conversations on September
13 and December 9, 2016. Please note that when there
are parties involved in an opinion other than the
person or public body that requested the opinion,
we generally try to contact the other parties as a
courtesy to let them know an opinion has been requested.
In this instance such contact was not possible as
you did not identify the school system involved in
this situation.
Dear
Mr. Faughnan:
You have asked two questions of this office: "(i)
whether a Virginia school board must produce to its
teacher employee documents and records the school
board received, reviewed, prepared, or relied on during
its investigation of a complaint that the teacher
physically mistreated a student in her class; and
(ii) whether Virginia’s Government Data Collection
and Dissemination Practices Act, Va. Code Ann. §
2.2-3800 et seq., applies to Virginia school
boards." To summarize the background facts you
provided, you indicated that the teacher has been
employed by the school board for over 20 years and
prior to October, 2014 there had been no allegations
that the teacher had abused or mistreated any student.
On October 3, 2014, a parent contacted a school supervisor
and alleged that the teacher had physically mistreated
a student in the teacher's class. The school informed
the teacher that a report had been filed with Child
Protective Services (CPS) on the same date. The teacher
was placed on administrative leave pending investigation
of the matter. Later that month the school informed
the teacher that the CPS investigation determined
that the allegation was unfounded, as did the school's
own investigation conducted by the school's Department
of Personnel Services. The teacher returned to work
on October 20, 2014. On November 5, 2014 a second
allegation of mistreatment of a student was made against
the teacher by a parent. Again, a report was made
to CPS and the teacher was placed on administrative
leave. CPS notified the teacher by letter dated January
20, 2015 that its investigation determined that the
second allegation was also unfounded. On February
10, 2015 the school notified the teacher that CPS
had determined the second allegation was unfounded,
and that the school did not conduct its own separate
investigation of the second allegation. The teacher
returned to work February 11, 2015 but was placed
in a different position at a different school. Also
in February, 2015, you indicated the teacher made
a request for public records in two parts under the
Virginia Freedom of Information Act (FOIA) and the
Government Data Collection and Dissemination Practices
Act (GDCDPA). The first request asked for "all
documents and other tangible items located in the
teacher’s personnel file." The second asked for
"all documents and other tangible items received,
reviewed, prepared, or relied on by the Department
of Human Resources relating to its October 2014 investigation
of the allegation that the teacher mistreated a student
including, but not limited to, all related notes,
recordings, and photographs."1 You stated the
school replied by providing "(i) documents the
school board represents it maintains in the teacher’s
central file; and (ii) a one-page document that the
school board refers to as the “[Teacher] Investigation
Summary” (the “Investigation Summary”)." However,
you stated that you believe the Investigation Summary
was created after the teacher's request was made,
and that the school has additional responsive documents
that it did not provide. Specifically, you indicated
that you believe the school has an investigation file
containing, "among other things: (i) the allegations
made against the teacher; (ii) the identity of the
person(s) making those allegations; (iii) investigator(s)
notes of the allegations made against the teacher;
and (iv) investigator(s) notes of interviews conducted
with employees and others."
Your initial letter to this office did not indicate
that the school had cited any exemptions or that the
school denied the existence of additional records.
However, the electronic mail message dated October
13, 2016 included a document that purports to outline
the school board's responses (the "response outline")
denying access to some of the records the teacher
requested.2 The response outline describes several
different types of records and corresponding exemptions
which you indicated summarize arguments made by the
school in responding to the teacher's requests. In
addition to various provisions of FOIA, this response
outline mentions records withheld pursuant to social
services laws,3 the GDCDPA,4 a limitation on access
to pupil records,5 the federal Family Educational Rights
and Privacy Act (FERPA) and regulations,6 and a United
States Supreme Court case addressing constitutional
property rights.7 Unfortunately, because this office
is limited to providing advisory opinions and guidance
regarding FOIA, we cannot offer an advisory opinion
on matters that fall outside of FOIA. Specifically,
subdivision 1 of § 30-179 grants the FOIA Council
the authority to "Furnish, upon request, advisory
opinions or guidelines, and other appropriate information
regarding [FOIA] to any person or agency of state
or local government, in an expeditious manner."
We do consider other laws as they interact with FOIA,
particularly because FOIA itself provides in subsection
A of § 2.2-3704 that public records must be disclosed
"[e]xcept as otherwise specifically provided
by law." Therefore to the extent other laws provide
an exemption from mandatory disclosure or prohibit
the release of certain records, such laws are recognized
by FOIA. However, we cannot offer independent interpretations
of those laws which fall outside of FOIA. Therefore
we cannot offer an opinion regarding your second question
as to whether a school board is subject to GDCDPA.
Returning to you first question, which does fall squarely
under FOIA, we must first note that the policy of
FOIA stated in subsection B of § 2.2-3700 is
to ensure "ready access to public records in
the custody of a public body or its officers and employees"
and that "[a]ll public records and meetings shall
be presumed open, unless an exemption is properly
invoked." Regarding exemptions, the policy states
that "[a]ny 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 definition
of "public body" in § 2.2-3701 specifically
includes "school boards," leaving no question
that the school is subject to FOIA. Similarly, the
definition of "public record" in the same
section includes "all writings and recordings
that consist of letters, words or numbers, or their
equivalent...however stored, and regardless of physical
form or characteristics, prepared or owned by, or
in the possession of a public body or its officers,
employees or agents in the transaction of public business."
Your question was "whether a Virginia school
board must produce to its teacher employee documents
and records the school board received, reviewed, prepared,
or relied on during its investigation of a complaint
that the teacher physically mistreated a student in
her class." It appears clear that allegations
of mistreatment of a student by a teacher and the
corresponding investigations of those allegations
by the school concern the transaction of the public
business of a school. To the extent CPS shared records
with the school about CPS' investigations of the same
allegations, those records would also be in the possession
of the school in the transaction of public business.
Applying the policy and definitions quoted above,
records of those allegations and investigations prepared,
owned, or possessed by the school would be public
records subject to disclosure under FOIA unless there
is a specific exemption that allows them to be withheld.
Before considering individual exemptions, let us first
consider the Investigation Summary provided to you
by the school. You stated that you believe that the
school created the Investigation Summary after the
teacher requested records. Consider first that if
the Investigation Summary did in fact exist at the
time of the request, then providing it was the proper
response. In the alternative, if the Investigation
Record did not exist at the time of the request, note
that subsection D of § 2.2-3704 provides that
"no public body shall be required to create a
new record if the record does not already exist."
The same subsection goes on to provide that "a
public body may abstract or summarize information
under such terms and conditions as agreed between
the requester and the public body." You did not
indicate that the school and the teacher had reached
any agreement regarding abstracting or summarizing
existing records to create the Investigation Summary.
As quoted above, a public body is not required to
create new records in order to respond to a request.
If a public body intends to charge for the creation
of a new record, to provide a new record in lieu of
providing other existing records, or if there are
other terms to be worked out involving the creation
of a new record, then the public body must seek an
agreement with the requester on such terms and conditions
beforehand. In this instance, you did not indicate
that there was any such agreement. Therefore it appears
from the limited facts available that if in fact the
Investigation Summary was created after the request
was made, then the school voluntarily created the
Investigation Summary and provided it to the teacher.
FOIA does not prevent a public body from voluntarily
creating a record and providing it to a requester.
However, unless there is an agreement with the requester
to do otherwise, a public body still must produce
any records that already exist at the time of the
request unless those records are exempt from mandatory
disclosure. If the Investigation Summary was provided
in lieu of providing other responsive records that
were not exempt and there was no agreement with the
requester to do so, that would not be a proper response.
Returning to consider the response outline previously
mentioned, that document listed two FOIA exemptions
that you indicated were used by the school to withhold
records: (1) the work product exemption for certain
records "compiled specifically ... for use in
an active administrative investigation concerning
a matter that is properly the subject of a closed
meeting under § 2.2-3711," subdivision 3
of § 2.2-3705.1, and (2) the scholastic records
exemption, subdivision 1 of § 2.2-3705.4. Addressing
the first exemption mentioned, the exemption excludes
from mandatory disclosure certain records compiled
specifically "for use in an active
administrative investigation."8 [Emphasis
added.] You indicated that the teacher's request was
made in February, 2015, after the teacher had been
notified that the investigations of both allegations
had been concluded and determined to be unfounded.
Based on these facts, it appears that the investigations
were no longer active at the time the request was
made, and therefore this exemption would not apply
in this instance.9
Turning to the scholastic records exemption, that
exemption states in relevant part that the following
records are excluded from mandatory disclosure but
may be disclosed in the discretion of the custodian:
"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."
The term "scholastic records" is defined
in § 2.2-3701 to mean "those records containing
information directly related to a student or an applicant
for admission and maintained by a public body that
is an educational agency or institution or by a person
acting for such agency or institution." While
the exact contents of the records that were withheld
are unknown, it appears from the response outline
you provided that records withheld as scholastic records
include a "parent email, investigative report,
and interviewer notes and attachments." You stated
that the teacher was alleged to have physically mistreated
a student, so it follows that the records must necessarily
contain information relating to both the student and
the teacher involved. It is unknown whether the records
of the allegations and subsequent investigations specifically
identify the student involved. Additionally, such
records might contain information concerning other
students or school personnel (for example, witnesses
to the alleged incidents or others who may have been
interviewed). If they do not identify any individual
student(s), then they are not exempt under the terms
of the scholastic records exemption. However, to the
extent these records are maintained by the school
and contain some information directly related to an
identifiable student, those portions are exempt "scholastic
records." Such scholastic records that concern
identifiable students are exempt from mandatory disclosure
to anyone other than the student and his or her parent
or legal guardian in accordance with subdivision 1
of § 2.2-3705.4.
However, as the allegations were directed at the teacher,
the records of those allegations must necessarily
involve the teacher. Additionally, as noted above,
it is possible that the records contain information
concerning other school personnel. Therefore we must
also consider the personnel records exemption, subdivision
1 of § 2.2-3705.1, which excludes from mandatory
disclosure "[p]ersonnel information concerning
identifiable individuals, except that access shall
not be denied to the person who is the subject thereof."
You stated that the school did provide "documents
the school board represents it maintains in the teacher's
central file" but you believe that the school
withheld other documents related to the allegations
and investigations. A prior opinion of the Attorney
General determined that an anonymous complaint letter
from a parent alleging that students had seen a teacher
smoking marijuana between classes was a personnel
record that must be disclosed to the teacher upon
proper request.10 Following that opinion, it would appear
that any records of the allegations against the teacher
in this instance would also be a personnel record
that must be disclosed to the subject. Under the terms
of the personnel records exemption, because the teacher
is the subject of her own personnel records, she "shall
not be denied" access to them, but they could
be withheld from others. Thus an apparent conflict
arises between the personnel and scholastic records
exemptions, which may both apply to the same record(s)
in this instance (if both the teacher and the student
are identified in the records), and which would appear
to simultaneously allow the records to be withheld
yet require they be disclosed to their subjects.11
In order to reconcile this apparent conflict, take
note of the rule of redaction as enacted by the General
Assembly this year in new § 2.2-3704.01:
No
provision of this chapter is intended, nor shall
it be construed or applied, to authorize a public
body to withhold a public record in its entirety
on the grounds that some portion of the public record
is excluded from disclosure by this chapter or by
any other provision of law. A public record may
be withheld from disclosure in its entirety only
to the extent that an exclusion from disclosure
under this chapter or other provision of law applies
to the entire content of the public record. Otherwise,
only those portions of the public record containing
information subject to an exclusion under this chapter
or other provision of law may be withheld, and all
portions of the public record that are not so excluded
shall be disclosed.
Therefore
to the extent that the records at issue concern only
the teacher and are the teacher's personnel records,
they must be disclosed to the teacher. To the extent
they are scholastic records of an identifiable student
and do not concern the teacher, they are exempt from
mandatory disclosure to the teacher. To the extent
they may overlap and concern both, we must apply maxims
of statutory construction as set out by the Supreme
Court of Virginia:
The
primary objective of statutory construction is to
ascertain and give effect to legislative intent.
When a given controversy involves a number of related
statutes, they should be read and construed together
in order to give full meaning, force, and effect
to each. Therefore we accord each statute, insofar
as possible, a meaning that does not conflict with
any other statute. When two statutes seemingly conflict,
they should be harmonized, if at all possible, to
give effect to both.12
Construing
these statutory exemptions together to give effect
to both, and applying the rule of redaction as well
as FOIA's direction to narrowly construe exemptions,
the solution appears to be to redact those portions
of the records which are scholastic records while
disclosing to the teacher those portions which are
the teacher's own personnel records. In analyzing
the interaction of these exemptions through the lens
of FOIA, we also must consider as a practical matter
whether the teacher already knows the identity of
the student involved in these alleged incidents. If
so, then redacting information that could identify
the student would serve no practical purpose. We must
also keep in mind that even when records are exempt
from mandatory disclosure under FOIA, FOIA permits
exempt records to be disclosed in the discretion of
the custodian. Therefore, as a practical matter of
best practices under FOIA, records to which both the
scholastic and personnel exemptions apply simultaneously
may be disclosed to the teacher without redacting
identifying information if the identity of the student
is already known to the teacher, unless some other
law prohibits such disclosure. However, if any student
identified in the records is anonymous to the teacher,
then that anonymity may be maintained and any portions
of the record that would identify the student(s) may
be withheld as scholastic records.13 As
will be further discussed below, the application of
other laws outside of FOIA may lead to a different
conclusion.
As stated above, this office cannot offer independent
interpretations and guidance regarding statutes outside
of FOIA, but we do take note of such statutes as they
interact with FOIA. For example, you related that
the school had cited §§ 63.2-104, 63.2-1514,
and 63.2-1515 in regard to withholding CPS records.
Although they were not mentioned, note that subdivisions
3 and 14 of § 2.2-3705.5 within FOIA cross-reference
§ 63.2-104 and exempt from mandatory disclosure
records to which it applies. Further note that §
63.2-104 plainly states that "records, information
and statistical registries of the Department [of Social
Services], local departments and of all child-welfare
agencies concerning social services to or on behalf
of individuals shall be confidential information"
and sets out a Class 1 misdemeanor penalty for disclosure
in violation of § 63.2-104 or 63.2-105. I would
further note without interpretation that § 63.2-1515
appears to address the retention of records of unfounded
complaints and provides mechanisms for the subject
of such complaints to access those records. Additionally,
note that § 22.1-287 also appears to establish
rules regarding access to student records by first
establishing a general prohibition on access then
setting forth rules for who may access pupil records,
and what types of records may be disclosed. Relevant
to your inquiry note that subdivision A 4 of §
22.1-287 provides as follows:
A.
No teacher, principal or employee of any public
school nor any school board member shall permit
access to any records concerning any particular
pupil enrolled in the school in any class to any
person except under judicial process unless the
person is one of the following:
*
* *
4.
The current teachers of such pupil;
You
indicated that the teacher has been transferred and
is no longer the teacher of the student in question.
As described previously, and in contrast to §
22.1-287, the scholastic record exemption in FOIA
excludes scholastic records from mandatory disclosure,
but still allows the custodian to disclose those records
in his discretion. Given the factual background you
provided, consideration of both FOIA and § 22.1-287
together raises the question of whether the school
can release under FOIA the teacher's own personnel
records to the teacher if those records also contain
scholastic records (as we advise above), or whether
the teacher must first get a court order because of
the limitations on access imposed under § 22.1-287.
Research did not reveal any Virginia court precedent
or opinion of the Attorney General directly on point
interpreting these provisions.14 As stated above, maxims
of statutory construction would require this section
to be read in conjunction with the scholastic records
provisions of FOIA, as well as federal laws on access
to student records such as FERPA. Finally, although
you did not mention it, we must also note that in
researching this opinion we became aware of §
22.1-295.1, subsection B of which provides as follows:
Information
determined to be unfounded after a reasonable administrative
review shall not be maintained in any employee personnel
file, but may be retained in a separate sealed file
by the administration if such information alleges
civil or criminal offenses. Any dispute over such
unfounded information exclusive of opinions retained
in the personnel file, or in a separate sealed file,
notwithstanding the provisions of the Government
Data Collection and Dissemination Practices Act
(§ 2.2-3800 et seq.), shall be settled through
the employee grievance procedure as provided in
§§ 22.1-306 and 22.1-308 through 22.1-314.
This
section appears to address access under the GDCDPA
rather than under FOIA, and appears to provide an
alternative mechanism to access records through the
employee grievance procedure. It is unclear how or
whether this provision affects access under FOIA.
Unfortunately, while we may take note of these laws
that may have some independent bearing on access to
these records, this office is not the proper agency
to render an interpretation of these myriad laws because
of the limitation on this office's statutory authority
to FOIA matters.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1I
note that in your letter to this office you referred
first to the school's "Department of Personnel
Services" and later to "the Department of
Human Resources," both in reference to the school's
investigation of the October allegation. It is presumed
in context for purposes of this opinion that there
was a single investigation of the October allegation
by the school and these two Departments are actually
the same, rather than separate investigations conducted
by two different Departments within the school.
2As copies of the school's actual responses
were not provided, we must emphasize that this opinion
is based solely on the materials you provided and
the facts you presented therein.
3Va. Code §§ 63.2-104, 63.2-1514,
and 63.2-1515.
4Va. Code §§ 2.2-3801, 2.2-3806,
and various opinions regarding the GDCDPA.
5Va.
Code § 22.1-287.
620
U.S.C. 1232g and 34 CFR Part 99, respectively.
7Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985).
8Note that that the same exemption also
covers certain records "compiled specifically
for use in litigation." This other aspect of
the exemption does not depend on whether the investigations
are "active" or concluded. However, the
materials you provided imply that the school did not
rely upon the aspect of the exemption applicable to
litigation materials, and so for purposes of this
opinion we consider only the aspect of the exemption
that applies to "an active administrative investigation."
See Virginia-Pilot Media Cos., L.L.C. v. City
of Norfolk School Board, 81 Va. Cir. 450, 461
(Norfolk 2010)("Additionally, the language of
§ 2.2-3705.1(3) appears clear and unambiguous
on its face; the word 'active' modifies only the term
'administrative investigation', and not the
term 'litigation,' which itself may be anticipated,
or planned, active, or concluded.").
9Note that we are aware that there have
been at least two different interpretations of the
use of the term "active" in the context
of different administrative investigation exemptions
from different Circuit Courts. See Virginian-Pilot,
id. and McChrystal v. Fairfax County Bd. of Supervisors,
67 Va. Cir. 171 (Fairfax 2005). Specifically, the
Virginian-Pilot case addressed subdivision
3 of § 2.2-3705.1, which is the exemption at
issue here, while McChrystal considered the
exemption for administrative investigations of employment
discrimination matters, subdivision 3 of § 2.2-3705.3.
101983-1984
Op. Atty. Gen. Va. 437.
11Note
that the same type of conflict may arise if a personnel
record contains information about multiple employees,
in that an employee is entitled to his or her own
personnel records under FOIA but not to the personnel
records of others. A similar analysis would apply
in that situation, but is not directly addressed in
this opinion because it does not appear from the facts
provided that the school relied on the personnel records
exemption as a reason to withhold records.
12Lawlor
v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847,
875 (Va. 2013)(quoting Conger v. Barrett,
280 Va. 627, 630-31, 702 S.E.2d 117, 118 (2010)).
13As
previously noted, the same type of analysis would
apply if the records at issue contained personnel
information concerning other employees. See n.
11, supra.
14The
Supreme Court of Virginia considered both the scholastic
records exemption in FOIA and § 22.1-287 in Wall
v. Fairfax County School Bd., 252 Va. 156, 475
S.E.2d 803 (1996), but the case was factually distinct
in that it concerned a request from a student for
scholastic records of other students (which request,
and petition for mandamus, were denied). In Bunch
v. Artz, 71 Va. Cir. 358 (Portsmouth 2006), the
Circuit Court for the City of Portsmouth considered
§ 22.1-287 and FERPA in the context of courtroom
discovery procedures applied to third-party scholastic
records, but that case did not involve FOIA. There
are also several opinions of the Attorney General
addressing various questions under § 22.1-287
and FERPA, but none appear to be directly applicable
to your inquiry.
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