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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-21
May
25, 2021
Robert
Zullo
Editor
The Virginia Mercury
Via Email
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 and attachments
from March 16, 2021.
Dear
Mr. Zullo:
You have asked two questions regarding access to final
reports of investigations into activities of the Virginia
Parole Board (the Board) made by the Office of the
State Inspector General (OSIG). Both questions and
short answers to each are presented in the section
below with a more detailed discussion and analysis
afterward.
Questions Presented and Background
As background for your first question, you wrote that
pursuant to the Virginia Freedom of Information Act
(§ 2.2-3700 et seq. of the Code of Virginia)
(FOIA) you requested certain reports from OSIG concerning
investigations OSIG made into activities of the Board,
but OSIG refused to release them except in heavily
redacted form. You provided three responses you received
from OSIG, all of which appear to be almost entirely
redacted, except for the header (addressed as letters
to the Secretary of Public Safety and Homeland Security);
opening statement that OSIG "conducted an administrative
investigation based on multiple complaints made to
the State Fraud, Waste and Abuse Hotline about the
Virginia Parole Board (VPB)" with a case number;
conclusions stating whether the allegations were substantiated
or unsubstantiated; and a statement that OSIG will
provide recommendations in a subsequent report. The
sections of the reports detailing the allegations,
background, and findings of fact were entirely redacted
from all three reports that you included with your
inquiry to this office. You stated that OSIG wrote
as follows in denying your request:
Note
that all Virginia Parole Board information provided
to OSIG to conduct this administrative Fraud, Waste
and Abuse Hotline investigation is exempt from FOIA
under Code of Virginia §§ 2.2-3703(A)(1)
and 2.2-3705.3(7). The Virginia Parole Board maintains
its FOIA exclusions and has not waived its FOIA
protections. The attached redacted documents pertaining
to FOIA 2021-033 Virginia Parole Board Case Report
#18467 are being supplied to you in compliance with
Code of Virginia § 2.2-3704[B].
Your first question to this office, given this background,
is whether OSIG is "correct in applying the Parole
Board's FOIA exemption to finished reports that are
in [OSIG's] possession." Examining this question
solely from the perspective of FOIA, the short answer
would be that no, OSIG would not be correct in applying
subdivision A 1 of § 2.2-3703 (the provision
that excepts the Board from FOIA) because that subdivision
applies only to the Board, but OSIG may use the exemption
in subdivision 7 of § 2.2-3705.3 to withhold
those records to which it applies because that exemption
specifically exempts from disclosure certain records
"provided to or produced by or for" OSIG.
As background to your second question, you stated
that an OSIG report regarding the Board was released
in full to members of the General Assembly who subsequently
made the full report public. You stated that both
the Secretary of Public Safety and Homeland Security
and the Governor's Chief of Staff made statements
indicating that the public release of the report by
members of the General Assembly was prohibited by
law. You then asked the Office of the Governor "to
provide the code sections that make it illegal for
a member of the General Assembly to release a finished
report of the Office of the State Inspector General."
The response from the Office of the Governor said
"please see the following code sections, per
our counsel. I've pulled out some relevant parts,
but not all" and then cited and quoted from the
following Code provisions: subsection C of §
2.2-310, subsections B, E, and F of § 2.2-313,
subdivision A 1 of § 2.2-3703, subdivision 7
of § 2.2-3705.3, and § 2.2-3714. Please
note that while §§ 2.2-3703, 2.2-3705.3,
and 2.2-3714 are sections within FOIA, §§
2.2-310 and 2.2-313 are laws specific to OSIG outside
of FOIA. You posed your second question to this office
as follows: "Is there anything in the code to
support the administration's claim that it was illegal
for members of the General Assembly to release the
report at issue?" Unfortunately, this office
can only respond to this question in part, because
our statutory authority is limited to FOIA matters.
Pursuant to § 30-179, this office has the power
and duty to "[f]urnish, upon request, advisory
opinions or guidelines, and other appropriate information
regarding the Freedom of Information Act (§ 2.2-3700
et seq.) to any person or public body, in an expeditious
manner," but we do not have authority to opine
independently on other parts of the Code. With that
limitation in mind, the short answer is that nothing
in FOIA itself would prohibit a member of the General
Assembly from sharing a report obtained from OSIG,
but this office cannot opine on whether other laws
outside of FOIA may act to prohibit the release of
such reports.
FOIA
Policy and Statutory Rules of Construction
The purpose of FOIA as stated in subsection B of Code
§ 2.2-3700 is to ensure "the people of the
Commonwealth ready access to public records in the
custody of a public body or its officers and employees,
and free entry to meetings of public bodies wherein
the business of the people is being conducted."
That subsection continues with the statement of principle
that "[t]he affairs of government are not intended
to be conducted in an atmosphere of secrecy since
at all times the public is to be the beneficiary of
any action taken at any level of government."
The General Assembly has also provided specific direction
in how to interpret FOIA in the same subsection:
The
provisions of this chapter 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.
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.
As stated by the Supreme Court of Virginia in applying
these rules, "[b]y its own terms, [FOIA] puts
the interpretative thumb on the scale in favor of
disclosure" and "[d]isclosure exemptions
must be 'narrowly construed' in favor of disclosure."1
Therefore, if there is a choice between an interpretation
of a FOIA provision that favors disclosure and one
that favors secrecy, this office must choose the interpretation
that favors disclosure. Otherwise, if there is no
question of interpretation and the statutory language
at issue is clear and unambiguous, we follow its plain
meaning.2 Additionally, while FOIA generally requires
allowing public access to public records and meetings,
it does recognize other laws that prohibit or place
limits on such access. Specifically, in the context
of public records, subsection A of § 2.2-3704
directs that "[e]xcept as otherwise specifically
provided by law, all public records shall be open
to citizens of the Commonwealth" and certain
media representatives.
Analysis
of Your First Question Regarding OSIG's Use of Exemptions
Both OSIG and the Board are public bodies as defined
in § 2.2-3701, which includes "any legislative
body, authority, board, bureau, commission, district
or agency of the Commonwealth," among other entities,
and therefore, generally speaking, both are subject
to FOIA. However, as cited by OSIG in its reply to
you, the Board is largely excepted from the provisions
of FOIA pursuant to subdivision A 1 of § 2.2-3703:
A. The provisions of this chapter shall not apply
to:
1. The Virginia Parole Board, except that (i) information
from the Virginia Parole Board providing the number
of inmates considered by the Board for discretionary
parole, the number of inmates granted or denied
parole, and the number of parolees returned to the
custody of the Department of Corrections solely
as a result of a determination by the Board of a
violation of parole shall be open to inspection
and available for release, on a monthly basis, as
provided by § 2.2-3704; (ii) all guidance documents,
as defined in § 2.2-4101, shall be public records
and subject to the provisions of this chapter; and
(iii) all records concerning the finances of the
Virginia Parole Board shall be public records and
subject to the provisions of this chapter. The information
required by clause (i) shall be furnished by offense,
sex, race, age of the inmate, and the locality in
which the conviction was obtained, upon the request
of the party seeking the information. The information
required by clause (ii) shall include all documents
establishing the policy of the Board or any change
in or clarification of such policy with respect
to grant, denial, deferral, revocation, or supervision
of parole or geriatric release or the process for
consideration thereof, and shall be clearly and
conspicuously posted on the Board's website. However,
such information shall not include any portion of
any document reflecting the application of any policy
or policy change or clarification of such policy
to an individual inmate;
Therefore, other than the information and records
that are explicitly made subject to FOIA under this
subdivision, the Board is entirely excepted from FOIA,
not only for records purposes but also when considering
other FOIA provisions regarding meetings, training
requirements, posting statements of rights and responsibilities,
etc. Note also that this exception is the only provision
within FOIA that addresses the Board explicitly, presumably
because there is no need to set out separate exemptions
for other Board records or meetings when the Board
is otherwise exempt from FOIA. However, note also
that the plain meaning of this exception limits its
application to the Board itself, as it does not mention
any other public body. Additionally, given the General
Assembly's direction that "[a]ny exemption from
public access to records or meetings shall be narrowly
construed," to read this exception as applying
to any other public body would be to expand the scope
of the exception in a way that favors withholding
records and promoting the "atmosphere of secrecy"
that FOIA seeks to avoid, contrary to the direction
given by the General Assembly. Therefore, read on
its own, subdivision A 1 of § 2.2-3703 would
not exempt from disclosure under FOIA records held
by OSIG or any public body other than the Board.
However, the other Code section that was cited in
response to your first request, subdivision 7 of §
2.2-3705.3, provides a discretionary records exemption
that reads in relevant part as follows:
The following information contained in a public
record is excluded from the mandatory disclosure
provisions of this chapter but may be disclosed
by the custodian in his discretion, except where
such disclosure is prohibited by law. Redaction
of information excluded under this section from
a public record shall be conducted in accordance
with § 2.2-3704.01.
. . .
7. Investigative notes, correspondence and information
furnished in confidence, and records otherwise exempted
by this chapter or any Virginia statute, provided
to or produced by or for . . . (iv) the Office of
the State Inspector General with respect to an investigation
initiated through the Fraud, Waste and Abuse Hotline
or an investigation initiated pursuant to Chapter
3.2 (§ 2.2-307 et seq.). . . . Information
contained in completed investigations shall be disclosed
in a form that does not reveal the identity of the
complainants or persons supplying information to
investigators. Unless disclosure is excluded by
this subdivision, the information disclosed shall
include the agency involved, the identity of the
person who is the subject of the complaint, the
nature of the complaint, and the actions taken to
resolve the complaint. If an investigation does
not lead to corrective action, the identity of the
person who is the subject of the complaint may be
released only with the consent of the subject person.
The
first line of this exemption includes "[i]nvestigative
notes, correspondence and information furnished in
confidence, and records otherwise exempted by this
chapter or any Virginia statute." Within the
context of your question, Board records that are not
required to be released pursuant to subdivision A
1 of § 2.2-3703 are "otherwise exempted
by this chapter" since the Board is otherwise
exempt from FOIA. Clause (iv) of subdivision 7 of
§ 2.2-3705.3 specifically applies to certain
records "provided to or produced by or for"
OSIG and, given the prefatory language of the exemption,
OSIG may use this exemption to withhold or disclose
such records in its discretion. Therefore, such records
"provided to or produced by or for" OSIG
regarding an investigation of the Board would be exempt
pursuant to this subdivision and may be withheld by
OSIG in its discretion. However, the latter part of
the exemption requires that any records of completed
investigations are subject to disclosure in a redacted
form:
Information
contained in completed investigations shall be disclosed
in a form that does not reveal the identity of the
complainants or persons supplying information to
investigators. Unless disclosure is excluded by
this subdivision, the information disclosed shall
include the agency involved, the identity of the
person who is the subject of the complaint, the
nature of the complaint, and the actions taken to
resolve the complaint. If an investigation does
not lead to corrective action, the identity of the
person who is the subject of the complaint may be
released only with the consent of the subject person.
Reading this exemption in its entirely, "[i]nvestigative
notes, correspondence and information furnished in
confidence, and records otherwise exempted by this
chapter or any Virginia statute, provided to or produced
by or for" [OSIG] may continue to be withheld
in the discretion of the custodian once an investigation
is complete, but reports of completed investigations
must be released in redacted form as described. Therefore,
in response to your first inquiry, it appears that
under FOIA, subdivision A 1 of § 2.2-3703 and
subdivision 7 of § 2.2-3705.3, when read together,
would exempt certain records that were provided to
OSIG by the Board in the course of an investigation,
as well as certain other "investigative notes,
correspondence and information furnished in confidence,"
but would not exempt the final reports you requested
from OSIG because those reports, as records of completed
investigations, are required to be released in redacted
form.
Analysis of Your Second Question Regarding Release
of OSIG Reports by Members of the General Assembly
Turning
to your second question about whether members of the
General Assembly are prohibited from releasing OSIG
reports: if we were to consider only the Board exception
from FOIA and the OSIG records exemption discussed
above when analyzing the issue, the answer would be
"no."
First,
considering subdivision A 1 of § 2.2-3703, given
the narrow construction rule of FOIA as stated previously,
one cannot read a FOIA exception that is specific
to one entity as applying to a different entity because
that would expand limitations on access contrary to
the statutory policy of FOIA. Therefore, subdivision
A 1 of § 2.2-3703, which states that FOIA shall
not apply to the Board with certain exceptions, cannot
be read as applying to members of the General Assembly
or any other public body when such members and other
public bodies are not mentioned. Second, the language
of that exception (quoted previously) does not set
out any prohibition on the release of Board records,
it instead states that the Board is generally not
subject to FOIA except for certain records and information
specifically listed that are subject to disclosure
under FOIA. The plain meaning of the provision is
exactly that—the Board is generally not subject to
FOIA except for those items listed. Note that not
being subject to FOIA does not mean that the Board
is prevented from releasing records under this provision,
it simply means the Board is not subject to FOIA.
Board records may still be subject to disclosure in
other contexts, such as any voluntary disclosures
it chooses to make, affirmative disclosures required
under other laws,3 discovery in court proceedings,4
etc. In any case, the provision excepting the Board
from FOIA says nothing about the release of an OSIG
report by members of the General Assembly and cannot
be read as a prohibition of the same.
Next,
the records exemption in subdivision 7 of § 2.2-3705.3
allows certain entities, including OSIG, to withhold
certain investigative records while requiring the
release of records of completed investigations in
redacted form, but it also does not mention members
of the General Assembly and, therefore, cannot be
read as applying to such members. Additionally, consider
the prefatory language used for the vast majority
of FOIA records exemptions, including § 2.2-3705.3:
The following information contained in a public
record is excluded from the mandatory disclosure
provisions of this chapter but may be disclosed
by the custodian in his discretion, except where
such disclosure is prohibited by law. Redaction
of information excluded under this section from
a public record shall be conducted in accordance
with § 2.2-3704.01.
Because of this language, most FOIA exemptions—including
the OSIG exemption at issue here—generally allow a
custodian to withhold records in response to a FOIA
request while at the same time also allowing the custodian
to exercise that discretion to release records if
he so chooses, unless release is prohibited by some
other law. Applied in this instance, this means that
the OSIG exemption allows OSIG to withhold certain
investigative records while requiring the release
of records of completed investigations in a redacted
form, as described above, but OSIG could also choose
to release the records that are exempt (investigative
notes, etc.). The important concept to note here is
that the exemption does not prevent or prohibit the
release of exempt records, it actually allows for
such release, unless that release is prohibited by
other law. Therefore, this exemption cannot be read
to prohibit members of the General Assembly from releasing
OSIG reports, both because it does not apply to members
of the General Assembly and because it allows the
custodian of such exempt records to release them unless
prohibited by other law.
However, this is not the end of the analysis because
unlike the response to your first request, which only
cited these two FOIA provisions discussed above, the
response to your second inquiry also cited §§
2.2-3714, 2.2-310, and 2.2-313. Additionally, note
that the reply to your second inquiry stated that
it "pulled out some relevant parts, but not all"
of the relevant Code sections, which begs the question
of whether there may be other Code provisions outside
FOIA that may also affect access and dissemination
of these reports.
Addressing
the reference to § 2.2-3714, it is part of FOIA's
remedies provisions that sets out additional civil
penalties in varying amounts to be paid to the Literary
Fund for certain violations of FOIA (knowing and willful
violations, improper destruction or alteration of
records with the intent to avoid FOIA, and the improper
certification of closed meetings). None of these provisions
of § 2.2-3714 says anything specific about members
of the General Assembly or prohibits the release of
records. Therefore, applying the plain meaning of
these provisions and the narrow construction rules
of FOIA, § 2.2-3714 does not prohibit the release
of OSIG reports by members of the General Assembly.
Sections 2.2-310 and 2.2-313, also cited in the response
you received from the Office of the Governor, are
not part of FOIA but instead are part of the Code
that is specific to OSIG. As quoted in the response
to your inquiry, subsection C of § 2.2-310 provides
that "[t]he State Inspector General shall preserve
the confidentiality of any information obtained from
a state agency during the course of an investigation
in accordance with applicable state and federal law."
The response also quoted from several subsections
of § 2.2-313 as follows:
B. The State Inspector General shall notify the
Governor's chief of staff, the Speaker, Majority
Leader, and Minority Leader of the House of Delegates,
and the President pro tempore, Majority Leader,
and Minority Leader of the Senate of problems, abuses,
or deficiencies relating to the management or operation
of a state agency or nonstate agency ... E. Notwithstanding
any other provision of law, the reports, information,
or documents required by or under this section shall
be transmitted directly to the Governor's chief
of staff and the General Assembly by the State Inspector
General. F. Records that are confidential under
federal or state law shall be maintained as confidential
by the State Inspector General and shall not be
further disclosed, except as required by law.
Given the plain language of these provisions as quoted
above from the response you received and without further
interpretation, these provisions appear to direct
the State Inspector General to "preserve the
confidentiality" of certain information and state
that certain records "shall be maintained as
confidential by the State Inspector General and shall
not be further disclosed, except as required by law."
In the context of your inquiry, this language presents
two further questions: what "confidentiality"
applies to these records and whether the directives
to the State Inspector General set out in §§
2.2-310 and 2.2-313 also apply to members of the General
Assembly who receive reports from OSIG.
Addressing the first question as it relates to FOIA,
you requested certain investigative reports from OSIG
and as stated above, under FOIA such reports of completed
investigations must be released in redacted form pursuant
to subdivision 7 of § 2.2-3705.3. Other investigative
records may be withheld pursuant to the same exemption,
but also may be released in the discretion of the
custodian. As described previously, FOIA allows for
the release of these records by granting the custodian
discretion to release unless otherwise prohibited
by law; FOIA does not act as such a prohibition or
state that exempt records are confidential. Note that
even where subdivision 7 of § 2.2-3705.3 refers
to records "furnished in confidence," in
the context of the exemption and the facts you presented,
those would be records furnished to OSIG as part of
an investigation, not the records of the completed
investigation that were the subject of your request.
By
contrast to FOIA's language allowing discretion to
release, note that various other laws outside of FOIA
do explicitly make records "confidential"
and otherwise prohibit or limit their release. As
a matter of statutory construction, the Supreme Court
of Virginia has stated that
when
interpreting and applying a statute, we assume that
the General Assembly chose, with care, the words
it used in enacting the statute, and we are bound
by those words. Therefore, when the General Assembly
has used specific language in one instance, but
omits that language or uses different language when
addressing a similar subject elsewhere in the Code,
we must presume that the difference in the choice
of language was intentional.5
FOIA
does not define the term "confidential."
Section 2.2-307 sets out definitions for the enabling
legislation specific to OSIG (including §§
2.2-310 and 2.2-313), but it also lacks a definition
of the term "confidential." Turning to the
plain meaning in the absence of a statutory definition,
one online definition of "confidential"
is "meant to be kept secret and not told to or
shared with other people." 6Another source defines
"confidential" as "secret or private,
often in a formal, business, or military situation." 7
The FOIA provisions at issue here do not require such
secrecy by prohibiting the release of records, they
merely allow the custodian to withhold certain records
or release them in his discretion in response to a
FOIA request, while requiring the disclosure of other
records. Neither FOIA provision at issue here states
that it makes records "confidential" or
otherwise prohibits their disclosure.
As an example of such a law that explicitly makes
records confidential, consider § 2.2-4119, part
of the Virginia Administrative Dispute Resolution
Act (§ 2.2-4115 et seq.). Subsection A of that
section provides that "all dispute resolution
proceedings conducted pursuant to this chapter are
subject to [FOIA]" except for "the materials
described in subsection B." Subsection B of that
section lists certain materials, states that they
"are confidential," and further states that
"[c]onfidential materials and communications
are not subject to disclosure or discovery in any
judicial or administrative proceeding" with certain
exceptions. As another example, consider the language
used in subsection C of § 38.2-221.3:
All
applications, documents, materials, or other information
produced by, obtained by, or disclosed to the [State
Corporation] Commission or any other person in the
course of an investigation, or a review of an application,
shall be given confidential treatment, is not subject
to subpoena, and may not be made public by the Commission
or any other person.
This provision plainly contemplates disclosures other
than FOIA, especially as the Supreme Court of Virginia
has previously held that the State Corporation Commission
is not subject to FOIA.8 Another example would be §
19.2-299, concerning certain presentencing reports
by probation officers. That section requires probation
officers to prepare such reports in certain situations
and provide them to certain recipients, then states
that "[t]he report of the investigating officer
shall at all times be kept confidential by each recipient,
and shall be filed as a part of the record in the
case. Any report so filed shall be made available
only by court order and shall be sealed upon final
order by the court" with certain exceptions.
FOIA itself does have two prohibitions on the release
of records, but both of those avoid the prefatory
language that gives the custodian discretion to release
and specifically state that certain records "shall
not" be disclosed.9 Following the rules of statutory
construction, and observing that the General Assembly
clearly states in other laws when records are confidential
and when they are prohibited from release, we cannot
interpret the FOIA provisions that were cited as making
confidential the OSIG reports that you requested.
To the contrary, the relevant FOIA exemption, subdivision
7 of § 2.2-3705.3, requires the release of those
reports in redacted form.
However, while FOIA does not make these records confidential,
whether other laws outside of FOIA do so, and whether
the directives to the State Inspector General set
out in §§ 2.2-310 and 2.2-313 also apply
to members of the General Assembly who receive reports
from OSIG, are questions that fall beyond the statutory
authority of this office as both would require interpretations
of laws independent of FOIA. For those reasons, we
can only answer your second inquiry in part by stating
that while FOIA does not prohibit members of the General
Assembly from releasing OSIG reports, we cannot opine
on whether §§ 2.2-310 and 2.2-313 or some
other law(s) may act as such a prohibition.
Summary
You first asked whether OSIG is "correct in applying
the [Board's] FOIA exemption to finished reports that
are in [OSIG's] possession." Considering the
FOIA provisions cited and described above, subdivision
A 1 of § 2.2-3703 largely excepts the Board from
FOIA and subdivision 7 of § 2.2-3705.3 allows
certain records to be withheld while at the same time
requiring records of completed investigations to be
released in redacted form, unless release is otherwise
prohibited by law. Therefore, OSIG cannot rely on
subdivision A 1 of § 2.2-3703 on its own as an
exemption, because that provision is limited to the
Board. However, that provision makes clear that Board
records other than those that are specifically subject
to FOIA are generally "otherwise exempted by
this chapter or any Virginia statute." Therefore,
subdivision A 1 of § 2.2-3703 may be read in
conjunction with subdivision 7 of § 2.2-3705.3
to allow certain investigative records "provided
to or produced by or for" OSIG to be withheld.
However, final reports of OSIG investigations would
have to be released in redacted form in accordance
with the latter portion of subdivision 7 of §
2.2-3705.3.
Your
second question asked whether there is "anything
in the code to support the administration's claim
that it was illegal for members of the General Assembly
to release the report at issue." The FOIA provisions
that were cited in response to your second inquiry—subdivision
A 1 of § 2.2-3703, subdivision 7 of § 2.2-3705.3,
and § 2.2-3714—do not set out prohibitions that
would prevent members of the General Assembly from
disclosing OSIG reports. However, it would be beyond
the statutory authority of this office to opine whether
the cited portions of §§ 2.2-310 and 2.2-313,
or other such laws outside FOIA, prevent members of
the General Assembly from releasing such reports.
Thank you for contacting this office. I hope that
this opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1Virginia
Dep't of Corrections v. Surovell, 290 Va. 255,
263, 776 S.E.2d 579, 583 (2015) (quoting Fitzgerald
v. Loudoun County Sheriff's Office, 289 Va. 499,
505, 771 S.E.2d 858, 860-61 (2015)).
2See, e.g., Cole v. Smyth County Bd.
of Supervisors, 298 Va. 625, 636, 842 S.E.2d
389, 394 (2020) ("In construing statutory language,
we are bound by the plain meaning of clear and unambiguous
language." (quoting White Dog Publishing,
Inc. v. Culpeper County Bd. of Supervisors, 272
Va. 377, 386, 634 S.E.2d 334 (2006))).
3For example, subdivision 1 of § 53.1-136
provides that among its powers and duties the Board
shall "[a]dopt, subject to approval by the Governor,
general rules governing the granting of parole and
eligibility requirements, which shall be published
and posted for public review." This is an affirmative
disclosure requirement completely separate from FOIA.
4Note that § 2.2-3703.1 makes clear
that FOIA's provisions have no bearing on disclosures
made pursuant to court orders or subpoenas. As such,
the provision excepting the Board from FOIA would
also have no bearing if the Board were to be subject
to a court order or subpoena.
5Newberry Station Homeowners Ass'n
v. Bd. of Supervisors of Fairfax County, 285
Va. 604, 616, 740 S.E.2d 548, 554 (2013) (internal
quotations and citations omitted).
6Oxford Learner's Dictionary (https://www.oxfordlearnersdictionaries.com/definition/english/confidential?q=confidential,
last visited May 25, 2021).
7Cambridge Dictionary (https://dictionary.cambridge.org/us/dictionary/english/confidential,
last visited May 25, 2021).
8Christian v. State Corp. Comm'n,
282 Va. 392, 718 S.E.2d 767 (2011).
9Subsection B of § 2.2-3705.4 ("The
custodian of a scholastic record shall not release
the address, phone number, or email address of a student
in response to a request made under this chapter without
written consent. For any student who is (i) 18 years
of age or older, (ii) under the age of 18 and emancipated,
or (iii) attending an institution of higher education,
written consent of the student shall be required.
For any other student, written consent of the parent
or legal guardian of such student shall be required.")
and subsection C of § 2.2-3706 ("Prohibited
releases. The identity of any individual providing
information about a crime or criminal activity under
a promise of anonymity shall not be disclosed.").
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