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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-26
February
23, 2026
Mr.
Mital Gandhi
Loudoun, Virginia
Request received 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 email of September 3, 2024.
Background
You have asked for the opinion of this office regarding
records requests you made beginning on August 8, 2024.
As
background, you provided several pieces of correspondence
sent between you and the Freedom of Information Act
(FOIA) officer for Loudoun County Public Schools (LCPS).
The correspondence included two records requests,
and a contract governing certain materials held by
LCPS in relation to its virtual learning arm, Virtual
Loudoun. Initially you made a request that stated
the following:
Pursuant
to the Virginia Freedom of Information Act (§
2.2-3700 et seq.), I am requesting access to the
following materials: All curriculum materials for
all classes available to Virtual Loudoun students.
This includes all instructional content, such as
videos, lesson plans, and other educational resources,
excluding tests and examinations. For ease of access,
I would appreciate receiving a link to this material
for review. If any portion of this request is exempt
from disclosure, please provide a detailed explanation
of the exemption being applied. Additionally, I
request that the materials be provided in an electronic
format if possible. If there are any fees associated
with fulfilling this request, please inform me in
advance.
LCPS
responded to your initial request by refusing to release
any responsive records, which amounted to 125,000
pages. In its denial email, LCPS cited several provisions
of law: the United States Copyright Act of 1976, 17
U.S.C. § 106 and Va. Code §§ 2.2-3700(B),
2.2-3705.1(4), and 2.2-3705.4(A)(1), stating that
the records were copyright protected and could not
be released in part because the copyright holder had
not consented to their release. After the first denial
email, you narrowed your request; seeking the curriculum
and instructional materials for one class, Algebra
2/Trigonometry. You stated in follow-up that your
records request was necessary for inter alia,
"….criticism, comment, teaching, and potentially
news reporting." In response, LCPS stated that
the instructional content you sought was not prepared
or developed by LCPS, instead, the content you requested
was licensed from a private third party who, LCPS
stated, owned the copyrighted material. Finally, LCPS
asserted that any lesson plans prepared for Virtual
Loudoun that you requested initially were being withheld
because the lesson plans were in the sole possession
of the teacher and were not accessible or revealed
to any other person except a substitute teacher and
exempt pursuant to § 2.2-3705.4(A)(1). After
these denials, you submitted an additional, separate
FOIA request that disclosed a contract between LCPS
and the Hampton Roads Educational Telecommunications
Association, Inc. (HRETA), one of the third-party
vendors alluded to in your initial email exchange.
The
contract you received from your FOIA request was titled,
"Course Maintenance Subscription." The contract
outlined the purpose of the Course Maintenance Subscription
and the courses covered by the agreement. Additionally,
the contract included a provision stating the following:
"A. RIGHTS TO USE MATERIALS. LCPS is hereby
granted a royalty-free, non-exclusive, and irrevocable
license in perpetuity to reproduce, publish, or
otherwise use the Intellectual Property produced
by HRETA, Inc. in performance of this Agreement
and to use such Intellectual Property for noncommercial
purposes and to authorize others to do the same."
Policy Statement of FOIA
Before proceeding with any analysis, we will dispense
with several threshold matters. First, this office
previously opined that local school boards are public
bodies subject to FOIA.1 Next, whenever a request for
records is denied, subdivision B 1 of § 2.2-3704
requires that the subject of the withheld records
and the specific Code section that authorizes that
withholding must be identified in writing.2 Furthermore,
in order to answer the questions raised by your request
it is helpful to set forth the relevant policy of
FOIA. The policy statement of FOIA at subsection B
of § 2.2-3700 of the Code of Virginia, provides
that:
"By enacting this chapter, the General Assembly
ensures 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. The 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. 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.
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. This
chapter shall not be construed to discourage the free
discussion by government officials or employees of
public matters with the citizens of the Commonwealth."
Analysis
Virginia's FOIA policy, as set forth above establishes
a presumption of openness for all public records unless
specifically exempted.3 With this guiding principle
in mind, our analysis will evaluate each of the provisions
of law invoked by LCPS: first examining the intersection
between federal copyright law and FOIA disclosure
requirements, including select contractual provisions
between LCPS and HRETA; followed by the test and examination
exemption under § 2.2-3705.1(4); and finally
considering whether lesson plans qualify as exempt
"scholastic records" or fall under the narrowly
defined "sole possession" standard in §
2.2-3705.4(A)(1).
Doctrine
of Fair Use
It
is likely that the outcome of your request turns on
copyright protections afforded to curriculum materials
that LCPS licenses from a third-party vendor. In denying
your records request, LCPS cited the United States
Copyright Act of 1976, 17 U.S.C. § 106, which
grants copyright holders exclusive rights to reproduce,
distribute, and display their works. LCPS also referenced
an Opinion by the Virginia Attorney General, 1998
Op. Va. Att'y Gen. 5, which addressed the interplay
between FOIA and copyright protections. It is important
to note at the outset that FOIA does not contain a
specific exemption for copyrighted materials.4 The
statutory authority of the FOIA Advisory Council under
§ 30-179 is specifically limited to FOIA matters.5
Because of that statutory limitation, we only consider
copyright issues as they interact with FOIA and do
not offer any specific guidance on copyright law itself.
Following that understanding, based on the facts you
presented, we can highlight some considerations regarding
the interaction of copyright protections and FOIA
in relation to your records request.
Turning first to considerations regarding federal
copyright law, we note that certain provisions of
federal copyright law may dictate withholding what
are otherwise public records. Specifically, in the
context of your request, 17 U.S.C. §§ 106
and 107 may affect whether or not the records are
released, but it is ultimately a question of law,
that if challenged, would be determined by a court.
17
U.S.C. § 107 outlines the doctrine of fair use
— a codification of long established legal precedent
— that allows limited use of copyrighted material
without permission for purposes such as criticism,
comment, news reporting, teaching, scholarship, or
research.6 Your narrowed request for Algebra 2/Trigonometry
records specifically stated that you sought the materials
for "criticism, comment, teaching, and potentially
news reporting" purposes that would appear to
align with the statutory fair use examples. Critically,
a full fair use analysis involves a judicial determination
that weighs multiple factors and is fact-specific.7
Again, such a determination is outside the scope of
the Council's statutory authority.
Moreover,
as recognized by the Attorney General in the 1998
opinion, federal copyright law may limit a public
body's ability to reproduce and distribute copyrighted
works even when those works constitute public records
under FOIA.8 The 1998 opinion concerned copyrighted
material submitted to the Virginia state song subcommittee
tasked with selecting a new state song. In conducting
his analysis, the Attorney General explained that
copyrighted material could be released if one of two
conditions were met: (i) the copyright owner gave
express or implied consent or (ii) the dissemination
of the work constituted fair use.9In addition to delineating
the circumstances under which a copyrighted work could
be released, the Attorney General's opinion states
the following:
The Subcommittee may choose not to contact the copyright
owner if it determines that certain requests for
materials will be for purposes that constitute a
"fair use." Such a determination will,
however, depend on the facts and circumstances of
the individual requests. The Freedom of Information
Act does not require reproduction and dissemination
under circumstances that would violate the Copyright
Act.10
Returning
to the denial emails, LCPS acknowledged the principle
of express consent by asking the copyright holder
for permission to release the requested records. LCPS
went on to indicate that they did not receive permission
to disseminate the records in question. While LCPS's
conduct exemplifies a consent-based approach to copyrighted
work, it does not appear from the facts that you presented
that LCPS considered the doctrine of fair use.
Lastly, subsequent to your denial, you submitted another
FOIA request that revealed a contract between LCPS
and HRETA that appears potentially dispositive. The
Course Maintenance Subscription contract contains
the following language:
"A. RIGHTS TO USE MATERIALS. LCPS is hereby
granted a royalty-free, non-exclusive, and irrevocable
license in perpetuity to reproduce, publish, or
otherwise use the Intellectual Property produced
by HRETA, Inc. in performance of this Agreement
and to use such Intellectual Property for noncommercial
purposes and to authorize others to do the same."
This
contractual provision explicitly grants LCPS the right
not only to "reproduce" and "publish"
the materials but also to "authorize others"
to use such intellectual property for noncommercial
purposes. The contractual language on its face suggests
that LCPS may have broader authority to disclose these
materials than its initial response indicated. If
that is the case, then the records could be shared.
However, our position is merely speculative as without
more context, key provisions of this contract remain
unclear, and could be for a court to decide.
Narrowed Request - Tests or Examinations
Your
initial request specifically excluded tests or examinations.
However, LCPS cited subdivision 4 of § 2.2-3705.1
pertaining to tests or examinations, defined as:
"Any test or examination used, administered
or prepared by any public body for purposes of evaluation
of (i) any student or any student's performance,
(ii) any employee or employment seeker's qualifications
or aptitude for employment, retention, or promotion,
or (iii) qualifications for any license or certificate
issued by a public body.
As used in this subdivision, "test or examination"
shall include (a) any scoring key for any such test
or examination and (b) any other document that would
jeopardize the security of the test or examination.
Nothing contained in this subdivision shall prohibit
the release of test scores or results as provided
by law, or limit access to individual records as
provided by law. However, the subject of such employment
tests shall be entitled to review and inspect all
records relative to his performance on such employment
tests."11
In
so much as the responsive records — either the initial
125,000 pages or the narrowed Algebra 2/Trigonometry
request — would include scoring keys or jeopardize
the security of a test or examination, those records
may be withheld. This is likely a question of fact
that cannot be determined with the information provided.
Lesson Plans: § 2.2-3705.4(A)(1).
In your email exchange, LCPS indicated that the lesson
plan records you requested were being withheld under
subdivision A 1 of § 2.2-3705.4 of the Code of
Virginia. However, LCPS also asserted that Virtual
Loudoun teachers do not prepare lesson plans. If lesson
plans truly do not exist, the proper response from
LCPS is dictated by subdivision B 3 of § 2.2-3704.12
Therefore, LCPS's response makes it difficult to determine
if the lesson plans exist or not.
Turning
now to the substantive exemption claimed, subdivision
A 1 of § 2.2-3705.4 addresses "scholastic
records," which are further defined in §
2.2-3701 as 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."13
This
office has previously examined the scholastic records
exemption, finding that the touchstone is whether
the record is directly related to a student, not merely
educational in nature.14 As stated above, subdivision
A 1 of § 2.2-3705.4 concerns scholastic records.
Within subdivision A 1 there is a clause that states:
"However, no student shall have access to (i)
financial records of a parent or guardian or (ii)
records of instructional, supervisory, and administrative
personnel and educational personnel ancillary thereto,
that are in the sole possession of the maker thereof
and that are not accessible or revealed to any other
person except a substitute."15
Read
in context, "no student shall" limits only
student access; it does not create a categorical withholding
basis for other requesters. Assuming, arguendo
that "no student shall" encompasses other
categories of requestors, not just students, a narrow
construction of the noun phrase "sole possession"
found in clause (ii) does not justify withholding
records. In this context, "sole possession"
is a phrase derived from the federal Family Education
Rights and Privacy Act (FERPA).16
While
FOIA does not mirror FERPA word-for-word, federal
regulations and prior opinions of this office support
a narrow reading/construction of the sole possession
standard.17 This office has previously examined the
sole possession standard in FOIA, finding that it
must be read in concert with FERPA.18 Federal regulations
at 34 C.F.R. § 99.3 define the scope of this
exception, limiting it to records that function as
"memory aids" and are not shared for routine
purposes.19
In
2004, this office examined FERPA and FOIA in relation
to "sole possession" records. Freedom of
Information Advisory Opinion 13 (2004) concerned a
requester seeking copies of audition and evaluation
forms related to his daughter's theater audition at
a public university that were in the possession of
an audition committee.20 Consistent with federal regulations,
we distinguished "sole possession" records
from scholastic or educational records.21 After analyzing
the "sole possession exemption," we concluded
that:
1.
Documents kept by the audition committee solely
as personal memory aids were likely excluded from
disclosure under FOIA and FERPA;
2.
Notes and comments on standardized audition scorecards
or evaluation forms were not within the sole possession
exception in FOIA or FERPA; and
3.
Written procedures and guidelines used by the audition
panel were subject to disclosure under FOIA and
FERPA because they did not contain information concerning
identifiable students.22
Hence,
sole possession applies to records kept solely as
the maker's memory aid and not shared or accessible
to anyone else except a substitute.23 Once a document
is shared for routine instructional or administrative
purposes, or used beyond the scope of a personal memory
aid, it moves outside the sole-possession standard.24
Applying
these rules to the instant case, while LCPS maintains
that Virtual Loudoun teachers do not prepare lesson
plans, to the extent lesson plans do exist, they are
not "scholastic records" under § 2.2-3701
absent student-specific annotations. Lesson plans
are not exempt as scholastic records, and the "sole
possession" noun phrase does not justify withholding
them from non-student requesters. If a lesson plan
contains student names or other identifiable student
information, those portions should be redacted and
the remainder produced to the requester. Hence, if
the lesson plans created by Virtual Loudoun teachers
are used solely as memory aids then they are properly
withheld, but if used in some other capacity, the
lesson plans are considered open.
Thank
you,
Matteo
Murrelle
Senior Attorney
Alan
Gernhardt, Esq.
Executive Director
1Va. Code Ann. § 2.2-3701; see
also Freedom of Information Advisory Opinion
03 (2019).
2Va. Code Ann. § 2.2-3704(B); e.g.,
Freedom of Information Advisory Opinion 02 (2009).
3Va. Code Ann. § 2.2-3704(B).
4Freedom of Information Advisory Opinion 20 (2000).
5Va. Code Ann. § 30-179(1).
617 U.S.C. §107; See U.S. Copyright Office, Compendium
of U.S. Copyright Office Practices §§ 101,
102.4 (3d ed. 2021).
7See U.S. Copyright Office, Compendium
of U.S. Copyright Office Practices §§ 100,
102.4 (3d ed. 2021).
8See 1998 Op. Va. Att'y Gen. 5.
9Id.
10Id.
11Va. Code Ann. § 2.2-3705.1(4)
12Va. Code Ann. §2.2-3704(B)(3)
13Va. Code Ann. § 2.2-3701
14See Freedom of Information Advisory
Opinion 13 (2004).
15Va. Code Ann. § 2.2-3705.4(A)(1).
1620 U.S.C. § 1232(g).
1734 CFR §99.3 "Education records";
see Freedom of Information Advisory Opinion
13 (2004).
18See Freedom of Information Advisory
Opinion 13 (2004).
1934 CFR 99.3 "Education records"; "The
term does not include: (1) Records that are kept in
the sole possession of the maker, are used only as
a personal memory aid, and are not accessible or revealed
to any other person except a temporary substitute
for the maker of the record."
20Freedom of Information Advisory Opinion 13 (2004).
21Id.
22See id; See also 34 CFR §
99.3.
23See id; See also 34 CFR §
99.3.
24See id.
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