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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-19
April
4, 2019
Tricia
Dunlap
Dunlap Law PLC
Henrico, 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 messages dated September
4, 2018 and our telephone conversation on February
19, 2019.
Dear
Ms. Dunlap:
You have asked whether the Virginia Board of Pharmacy
(the Board) may withhold records containing the names
of certain license applicants pursuant to Virginia
Code § 54.1-108. As background, you provided
a copy of your request to the Board, the relevant
part of which requested the following records pursuant
to § 54.1-108 and the Virginia Freedom of Information
Act (FOIA):
Any
and all lists, schedules, rosters, spreadsheets,
or records (collectively, the 'Lists') that set
forth individuals or entities who submitted applications
in response to RFA No. PHR-2018-01. Please note
that while Virginia Code section 54.1-108 exempts
from disclosure the actual applications and
Board scoring records, the exemption is narrowly
drawn and does not protect records such as the Lists
or other similar summaries or annotated summaries
related to applications or scoring records.
I am requesting records other than applications
or scoring records and these records are subject
to disclosure under [FOIA].
[Emphasis
in original.] You stated that the Board denied your
request in part and stated that the Board "historically
interpreted section 54.1-108 to protect the confidentiality
of an applicant's name." You included several
email messages that were provided to you, all of which
appear to be discussing the application review process
and materials received from the applicants, from which
applicant names appear to have been redacted.
Applicable
Law and Analysis - FOIA
The
policy of FOIA stated in subsection B of § 2.2-3700
is that "[a]ll public records and meetings shall
be presumed open, unless an exemption is properly
invoked." Subsection A of § 2.2-3704 provides
that all public records shall be open to the citizens
of the Commonwealth and certain media representatives
"[e]xcept as otherwise specifically provided
by law." Section 54.1-108 provides in full as
follows:
Official
records of the Department of Professional and Occupational
Regulation or the Department of Health Professions
or any board named in this title shall be subject
to the disclosure provisions of the Virginia Freedom
of Information Act (§ 2.2-3700 et seq.), except
for the following:
1.
Examination questions, papers, booklets, and answer
sheets, which may be disclosed at the discretion
of the board administering or causing to be administered
such examinations.
2.
Applications for admission to examinations or for
licensure, certification, registration, or permitting
and the scoring records maintained by any board
or by the Departments on individuals or applicants.
However, this material may be made available during
normal working hours for copying by the subject
individual or applicant at his expense at the office
of the Department or board that possesses the material.
3.
Records of active investigations being conducted
by the Departments or any board.
There
is no question that the Board in this instance is
a "public body" subject to FOIA as defined
in § 2.2-3701, and it is a board named in Title
54.1 to which § 54.1-108 applies. Research did
not reveal any prior court decisions or opinions of
the Attorney General that address the question presented
here. The only published opinions interpreting §
54.1-108 appear to be prior advisory opinions from
this office.1 Of these prior opinions, Freedom of Information
Advisory Opinion 07 (2003) is the most similar to
the question presented as that opinion addressed access
to a list of the names of attorneys licensed to practice
law by the Virginia State Bar (VSB). Within that context,
this office opined that, "[i]n order to withhold
a list of the names of people admitted to practice
law in the Commonwealth, a statute would need to specifically
exempt such a record ... if a statute does not specifically
exempt a record from disclosure, it must be made available
for public inspection and copying under FOIA."
That opinion concluded that "the VSB must provide
a list of the names of attorneys licensed to practice
law in the Commonwealth upon request, because there
is no specific statutory exemption that would allow
such a record to be withheld." That opinion also
examined the public policy reasons for requiring the
names of licensees to be made public:
Public
policy also supports the position that a list of
licensed attorneys is a matter of public record.
Section 54.1-100 states that every person has the
right to engage in any lawful profession, trade
or occupation, and that the Commonwealth cannot
abridge such rights except as a reasonable exercise
of its police powers when it is clearly found that
such an abridgment is necessary for the preservation
of the health, safety and welfare of the public.
By including the practice of law as a regulated
profession, the General Assembly made the decision
that it is in the public's best interest to require
licensure and regulation of attorneys in the Commonwealth.
To conclude that a list of attorneys licensed to
practice law is not a matter of public record runs
contrary to the public policy of licensing attorneys
in the first place. The public would not be well
served if it could not access a list of those the
Commonwealth has deemed to be in good standing to
practice law, because the purpose of the licensing
requirements is to protect the public health, safety
and welfare.
Applying
the same analysis to your inquiry would lead to the
conclusion that the Board would have to provide a
list of the names of licensees, just as the VSB had
to provide the name of licensed attorneys. However,
there is a distinction to be made in that the prior
opinion dealt with the names of licensees rather than
applicants for licensure. Section 54.1-108 addresses
and protects applications for licensure, but it does
not address lists of licensees. Therefore, the prior
opinion is not dispositive of the question you present
regarding the redaction of names of applicants for
licensure.
In
your inquiry you noted that FOIA's statutory policy
expressed at subsection B of § 2.2-3700 directs
that the provisions of FOIA "shall be liberally
construed to promote an increased awareness by all
persons of governmental activities and afford every
opportunity to citizens to witness the operations
of government" and 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." You also noted several exemptions
within FOIA where individuals' identities are specifically
and expressly protected,2 and asserted that "similar
statutory language protecting identities or identifying
information of applicants for Board license does not
exist." You further assert that while §
54.1-108 protects "applications" and "scoring
records," it does not protect identities or "information
contained in applications" or other identifying
information. Therefore, you conclude that such identifying
information of applicants for licensure is not exempt
when it is contained in records that are not protected
from disclosure by FOIA or other Code provisions.
While
you have accurately stated the policy of FOIA, I would
note first that § 54.1-108 is in a separate title
and chapter of the Code, and second, that even applying
a narrow construction rule to § 54.1-108 the
answer is not plain because § 54.1-108 does not
provide a statutory definition for the terms "applications
for admission" or "scoring records."
The Supreme Court of Virginia recently set out the
following principles of statutory construction:
When
construing a statute, our primary objective, as
always, is to ascertain and give effect to legislative
intent from the words of the statute. In determining
that intent, we are to give those words their ordinary
meaning, unless it is apparent that the legislative
intent is otherwise, and we presume that the General
Assembly chose, with care, the words that appear
in a statute. Furthermore, the plain, obvious, and
rational meaning of a statute is to be preferred
over any curious, narrow, or strained construction.
We also presume that, in choosing the words of the
statute, the General Assembly acted with full knowledge
of the law in the area in which it dealt....we will
not apply an unreasonably restrictive interpretation
of the statute that would subvert the legislative
intent expressed therein.3
Turning
to the ordinary meaning of the terms in question,
relevant dictionary definitions are set out below:
"Application
"6. a. A request, as for assistance, employment,
or admission to a school. b. The form or document
upon which such a request is made."4
"Score
"2. A record, usually numerical, of a competitive
event: keeping score. 3. a. The total number of points
made by each competitor or side in a contest, either
final or at a given stage. b. The number of points
attributed to a competitor or team. 4. A result, usually
expressed numerically, of a test or examination."5
"Record
"a. An account, as of information or facts, set
down esp. in writing as a means of preserving knowledge.
b. Something on which such an account is made."
"Records
"n. in business, particularly corporations, all
the written business documents, especially about financial
dealings. Thus, shareholders and partners are entitled
to access to the "records" of the business."6
Looking
at the redacted records you included with your inquiry,
they all appear to be email messages sent among Board
staff members concerning the process of evaluating
and scoring the applications that were received, including
information about the amount of materials received
from the applicants and given to the evaluators, the
process how the evaluators are to score each application,
the division of the applications among different health
service areas, scheduling the evaluations, etc. It
appears that the only information redacted was the
names of the individual applicants. Given the above
definitions and a narrow construction, one might argue
that "applications" and "scoring records"
can only mean the actual application forms and scoring
sheets used. However, as noted, while the narrow construction
rule clearly applies within FOIA, § 54.1-108
is a specific provision of law outside of FOIA. Allowing
for a broader interpretation, one could argue that
the terms "applications" and "scoring
records" would also include the email messages
in question as they clearly pertained to the application
materials and scoring process used to evaluate the
individual applicants. Reading the provisions of subdivisions
1 and 3 of § 54.1-108, in conjunction with subdivision
2, the General Assembly has expressly protected "examination
questions, papers, booklets, and answer sheets"
and "records of active investigations" along
with "applications" and "scoring records."
The legislative intent appears to be to provide confidentiality
to the application and investigation process. You
noted that the Board "historically interpreted
section 54.1-108 to protect the confidentiality of
an applicant's name," which would appear to coincide
with this apparent legislative intent. However, as
there is no court precedent or opinion of the Attorney
General on point to provide specific guidance on the
interpretation of these terms, and as the statutory
authority of this office is limited to FOIA matters,
it is not clear how a court would rule if this question
was presented as an issue in controversy.7
Thank
you for contacting this office. We hope that we have
been of assistance.
Sincerely,
Ashley
Binns
Staff Attorney
Alan
Gernhardt
Executive Director
1See
Freedom of Information Advisory Opinions 07 (2018),
26 (2004), 11 (2004), and 07 (2003). Similarly, note
that there appear to be no opinions interpreting former
Code § 54-1.41, which was recodified as §
54.1-108 (see 1988 Acts of Assembly, c. 765; Report
of the Virginia Code Commission on the Revision of Title
54 of the Code of Virginia, House Doc. No. 23 (1988)).
2Specifically, subdivisions 1 and 6 of §
2.2-3705.2 and subdivisions 8 and 11 of § 2.2-3705.3.
3Turner v. Commonwealth, 295 Va.
104, 108-109, 809 S.E.2d 679, 681 (2018) (internal quotations
and citations omitted).
4The American Heritage Dictionary
121 (2d College ed., 1982).
5Id.
at 1100.
6Hill,
Gerald and Kathleen Hill. The People's Law Dictionary.
Fine Communications, n.d. (last accessed March 8, 2019
at https://dictionary.law.com/Default.aspx?selected=1752).
7I would note that based on conversations
with you and representatives of the Board on February
19, 2019, it appears that the applicants' names have
been made public.
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