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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-19
April
3, 2019
John
F. Cafferky
Fairfax, 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 electronic mail message dated February
25, 2019.
Dear
Mr. Cafferky:
You have asked whether individual educational test
scores that are part of a student's scholastic record
would still be exempt from disclosure under subdivision
A 1 of § 2.2-3705.4 of the Code of Virginia,1
even if the student's name and other personal information
are redacted.
Factual
Background
You
stated that from time to time, your public school
board clients receive requests, pursuant to the Virginia
Freedom of Information Act (FOIA), for school records
containing individual test scores for all students
in a particular segment of a school or school division.
The requester has asked for individual scores and
not an aggregate, statistical, or combined score,
and they typically direct the school board to redact
individual student names and other personally identifiable
information.
Applicable
Law and Analysis - FOIA
As
a general matter, FOIA allows for the inspection of
public records by the public, except as otherwise
specifically provided by law.2 Under the
provisions of FOIA, "public records" is
defined to include:
all
writings and recordings that consist of letters,
words or numbers, or their equivalent, set down
by handwriting, typewriting, printing, photostatting,
photography, magnetic impulse, optical or magneto-optical
form, mechanical or electronic recording or other
form of data compilation, 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.3
"Public
body," as defined, means:
any
legislative body, authority, board, bureau, commission,
district or agency of the Commonwealth or of any
political subdivision of the Commonwealth, including
cities, towns and counties, municipal councils,
governing bodies of counties, school boards and
planning commissions; governing boards of public
institutions of higher education; and other organizations,
corporations or agencies in the Commonwealth supported
wholly or principally by public funds.4
Local
school boards fall within the definition of public
body, thus any records in their possession or in the
possession of their officers, employees, or agents
in the transaction of public business are considered
public records, and are required to "be open
to citizens of the Commonwealth, representatives of
newspapers and magazines with circulation in the Commonwealth,
and representatives of radio and television stations
broadcasting in or into the Commonwealth," except
as otherwise specifically provided by law.5
There
is an exception in FOIA for educational records that
excludes from mandatory disclosure "[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."6
The term "scholastic records" is defined
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."7 Although
scholastic records are excluded from mandatory disclosure
under the provisions of FOIA, the records may be disclosed
in the custodian's discretion, except where such disclosure
is otherwise prohibited by law.
The
test scores that are being requested are considered
part of a scholastic record because the information
is directly related to individual students. Therefore,
the test scores, as part of a scholastic record, are
excluded from mandatory disclosure under FOIA, unless
the information is being requested by the student
or the parent or legal guardian of the student who
is the subject of such records. Based on the given
facts, that does not seem to be the case.
Based
on the facts given, requesters seem to be under the
impression that the test scores would no longer be
exempt under FOIA if the student's name and other
personally identifiable information were to be redacted.
FOIA provides that "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."8 Simply put, FOIA allows
for the redaction or removal of exempt information
from a record that would otherwise be nonexempt, if
that information were not present. In this particular
situation, the test scores that the requesters seek
are a part of the students' scholastic record, which
contains a collection of information about identifiable
individuals. Even if student names and other personal
information were to be redacted, the fact still remains
that, as you have described them, these scholastic
records themselves contain specific information about
identifiable individuals; thus, the scholastic record
and all information contained therein would still
be exempt from mandatory disclosure under the provisions
of FOIA.
Conclusion
Although
student test scores are considered public records
that are held by the local school board, which is
a public body that is subject to the provisions of
FOIA, the test scores fall within an exception as
they are a part of a student's scholastic records
that are exempt from mandatory disclosure under FOIA.
Redacting or otherwise removing a student's name and
other personal information does not make the scholastic
record a nonexempt record that must be disclosed as
the record would still contain information about specific
individuals, whether identified by name or not.
Thank
you for contacting this office. We hope that we have
been of assistance.
Sincerely,
Ashley
Binns
Staff Attorney
Alan
Gernhardt
Executive Director
1All
section numbers provided are from the Code of Virginia.
2See § 2.2-3704(A).
3§ 2.2-3701.
4§ 2.2-3701.
5§ 2.2-3704(A).
6§
2.2-3705.4(A)(1).
7§ 2.2-3701.
8§ 2.2-3704.01.
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