Virginia Freedom of Information Advisory Council

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

AO-05-26

May 5, 2026

Ms. Melissa Waugh
Fairfax, 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 March 5, 2024.

Dear Ms. Waugh:

YouYou have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA), and specifically, the practices of Loudoun County Public Schools (LCPS) on the following questions:

1. Does FOIA apply to Virginia public schools when parents or guardians request copies of their child's scholastic records?

2. What if parents or guardians do not mention FOIA specifically when requesting their child's scholastic records? What if a parent or guardian just says that he or she would like a copy of the child's records?

3. Can a Virginia public school choose to apply the federal Family Educational Rights and Privacy Act (FERPA) deadlines to provide records in 45 days and other provisions of FERPA instead of FOIA? For example, does the school possess the authority to determine whether to provide copies of the requested records to the parent or guardian or to require the parent or guardian to come to the school to "inspect and review" the requested records pursuant to FERPA?¹

4. Must a Virginia public school provide notice to parents, guardians, and students of their rights under FOIA?

5. Would it be a violation of FOIA to insist that parents or guardians requesting a copy of their child's scholastic records complete a FERPA records request form that does not inform the parents or guardians of their more expansive rights under FOIA?

After initially submitting the five preceding questions regarding scholastic records and the applicability of FOIA and FERPA, you submitted the following two questions for additional consideration:

6. Does misleading information posted on Loudoun County Public Schools' (LCPS) website and FOIA portal comply with the requirements of subsection A of § 2.2-3704.1 of the Code of Virginia that require a school board to post a link on its homepage to a "plain English explanation of the rights of a requester under this chapter, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with this chapter"?

7. Can a school delegate its responsibility to provide parents, guardians, and students with scholastic records to a third party who assesses charges for the production of scholastic records even though FOIA prohibits the school from assessing charges for producing the same records?

Background

As background information, you are a special education attorney in Virginia representing families of children with disabilities in disputes with school districts. As FOIA was amended in 2021 to prohibit a public body from charging for scholastic records requested by a student's parent or guardian or a student 18 years of age or older, you stated in an email to this office that you have started requesting student scholastic records through FOIA rather than through FERPA. You also stated that you use FOIA instead of FERPA to request scholastic records because under FOIA parents can get the records sent to them electronically instead of being forced to go to the school to scan their child's records. In addition, you wrote that the response deadline for responding to FOIA requests (five working days by default with possible extensions) is shorter than the requirement under FERPA (45 days). You conveyed in your email that Virginia school districts have historically applied FERPA to requests by parents and guardians for their child's scholastic records by requiring a parent or guardian to come to the school during the school day to scan or take pictures of the requested records on a cell phone. You stated that the school districts will not provide copies of students' scholastic records "for a fee or otherwise." You also wrote that school districts take weeks to provide access to the records because FERPA, unlike FOIA, allows up to 45 days for a response.

You also wrote that after FOIA was amended to ensure that students' scholastic records are provided to parents or guardians without charge, you have decided to start affirmatively invoking FOIA when submitting requests for scholastic records on behalf of parents or guardians. You stated in your email that you utilize this practice because of FOIA's shorter response timeline (five working days) and the requirement that copies of scholastic records must be provided without charge pursuant to subsection F of § 2.2-3704 of the Code of Virginia. You also stated that some school districts have resisted by refusing to provide copies of records within FOIA's timelines.

You attached to your email a copy of a Memorandum Opinion (Memorandum) from the Circuit Court of Loudoun County (Circuit Court) resulting from a Petition for Writ of Mandamus that you filed on behalf of your client, the Petitioner, against the Loudoun County School Board (referred to in the body of the Memorandum as Loudoun County Public Schools (LCPS)) for failing to respond in a timely manner to a parent's request for her child's scholastic records under FOIA.² In this matter, the Petitioner filed a Petition for Writ of Mandamus pursuant to § 2.2-3713 of the Code of Virginia because LCPS had failed to respond or produce the requested records within five working days. LCPS argued that the matter was moot as it had eventually produced the requested records. LCPS contended that its failure to respond timely "was predicated on a good faith reliance on the provisions of FERPA relative to such requests."³

The Petitioner prevailed in part when the Circuit Court found that the requested records were subject to FOIA and that LCPS's denial of the records when initially requested was untimely. The Circuit Court determined that LCPS had violated the provisions of FOIA to produce the requested records as required by subsection B of § 2.2-3704 of the Code of Virginia. The Circuit Court further determined that the Petitioner had substantially prevailed on the merits of her claim, that awarding of costs and reasonable attorney fees was appropriate, and that the circumstances did not make the award unjust. Thus, the Circuit Court awarded the Petitioner costs and reasonable attorney fees based on the relief provisions of FOIA in subsection D of § 2.2-3713 of the Code of Virginia.

On behalf of the Petitioner, you also requested the Circuit Court to order LCPS to stop violating FOIA in the future and change its Records Request Form and the information on its website regarding records requests to inform parents of their rights under FOIA. Even though the Petition cited the requirements in subsection A of § 2.2-3704.1 of the Code of Virginia for the posting of "a plain English explanation of the rights of the requester" on LCPS's website, the Circuit Court did not grant these requests. The Circuit Court recognized that the request directing LCPS in its handling of requests by future unknown parents who may request such records is not supported by the evidence presented as those parents "are not parties to this proceeding and Virginia does not sanction class actions in such cases."⁴ The Circuit Court also indicated that the posting of the disclosure policy by LCPS was being brought into alignment with the requirements of FOIA.⁵

You also wrote in your email that one of your concerns is that LCPS's website refers parents to the webpage on FERPA to request copies of scholastic records.⁶ Additionally, your concern is that when parents request a school to provide their child's scholastic records, the individual schools provide the parents a LCPS FERPA Request Form (RT-20) to submit that says nothing of a parent's or a guardian's rights under FOIA. You attached a copy of this request form to your email to this office. You expressed that even if a parent or guardian is savvy enough to look on LCPS's FOIA webpage, the language on it implies that there may be charges for providing scholastic records even though scholastic records are exempt from charges for such records under FOIA. In your email, you stated that LCPS's FOIA webpage is misleading parents into thinking they cannot request a child's scholastic records from the school district pursuant to FOIA because "[i]f you click on the red box at the bottom of the page, set up an account, and go to the Public Records Center to request records, in the drop-down menu there is no option for Scholastic Records . . . again, misleading parents into thinking they cannot request Scholastic Records from LCPS pursuant to [FOIA]."⁷ You have inquired as to how LCPS's website and these records request forms can be in compliance with FOIA.

You also provided a response email to an inquiry you submitted to the United States Department of Education's Student Privacy Policy Office (SPPO) regarding FOIA and FERPA. SPPO maintains the FERPA email box to provide school officials, parents, students, and others with brief, informal responses to routine questions about FERPA. You asked SPPO about recent amendments to FOIA that provide for Virginia parents to receive free copies of their child's scholastic records and about FOIA's shorter timeline for a school district to produce records (five working days, with an allowable seven-working-day extension) versus FERPA's 45-day timeline. Specifically, you asked the following questions:

Does FERPA (a federal law) supersede Virginia law that provides much more robust rights to parents than FERPA?

In other words, can a school district unilaterally decide to ignore FOIA requirements that a parent be provided copies of records and force the parent to inspect only?

Or, can a school district unilaterally decide to apply the FERPA 45-day timeline instead of the much shorter FOIA timeline?

On January 22, 2024, Ms. Ellen Campbell with SPPO responded to your email by stating that:

Briefly, FERPA is a federal law that protects the privacy of students' education records. The term "education records" means those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. See § 99.3 "Education records." FERPA affords parents and eligible students the right to have access to their education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records. (An "eligible student" is a student who has turned 18 or is attending college at any age.) Under FERPA, an educational agency or institution is prohibited from disclosing personally identifiable information (PII) from students' education records, without consent, unless the disclosure meets an exception to FERPA's general consent requirement. See 34 CFR § 99.30 and § 99.31.

In her email, Ms. Campbell also provided hyperlinks to FERPA regulations and a guidance document for parents on the Department of Education's website. Both hyperlinks appear to have expired or been removed since you submitted your request to this office.

Ms. Campbell further wrote that:

SPPO has not analyzed Virginia State law, but in general, a state may have a law that provides additional rights to parents and eligible students. However, if a state law takes away the rights afforded parents and eligible students by FERPA, then we would see this as a conflict and, if the educational agency or institution wished to continue to receive U.S. Department of Education funds, then the school would have to comply with FERPA and not the state law. For example, a state could require that schools provide parents with access (or copies) within 5 days, while FERPA requires that a school provide a parent with an opportunity to inspect and review their child's education records within 45 days after it has received the request. See § 99.10(b). However, the state law could not dictate that the school has 60 days to comply with a request for access without conflicting with FERPA.

Along with the two supplemental questions, you also provided this office with 75 additional pages of documents that included a copy of the "Review of Policies and Practices Regarding Scholastic Records" prepared by the Loudoun County Special Education Advisory Committee (SEAC) and provided to LCPS. In this "Review of Policies and Practices" document, there were six specifically expressed Concerns and approximately nine Recommendations regarding the adopted policies and procedures implemented by LCPS for responding to student records requests. You stated that many of the issues initially identified have yet to be addressed or changed by LCPS.

One of SEAC's concerns is that "LCPS staff will restrict the methods by which a parent can request to receive copies of their child's education records if the right to receive them in a specified format is not in a school board policy." The most concerning issue to you specifically is the information provided in the Frequently Asked Questions (FAQ) titled "Requesting Student Scholastic Records" on page 34 of the document, which, instead of informing parents, guardians, and students of their rights to make a FOIA request for these records at no cost within the five-working-day timeline, refers viewers to a broken web link. Presumably, access would have gone to the former "Current Student Records Request" webpage (p. 32 of the document), which is now: https://www.lcps.org/o/ddi/page/current-students-record-request. You discussed the many problems with LCPS's webpage and portal in the Comments section within the document and in your email to this office. In particular, you expressed the concern that "by referring to FERPA and sending readers to a different location from the FOIA portal, LCPS seems to be purposefully steering parents/students away from invoking their rights under [FOIA] to request Scholastic Records."

SEAC's "Review of Policies and Practices" document also contains nine recommendations for improving the various issues identified by SEAC. These recommendations range from small changes like the uniform use of terminology appearing throughout the document to more significant alterations that include adding specific FOIA language with citations to the Code of Virginia.

Analysis

FOIA policy as stated in relative part in subsection B of § 2.2-3700 of the Code of Virginia provides:

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. . . . 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, . . . all public records shall be available for inspection and copying upon request. All public records 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 . . . shall be narrowly construed and no record shall be withheld . . . 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.

All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.

Section 2.2-3701 of the Code of Virginia defines "public records" as:

. . . 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.

The FOIA definition of a "public body," also in § 2.2-3701 of the Code of Virginia, explicitly includes "school boards." School boards are a body corporate that governs a school division pursuant to various provisions in Title 22.1 of the Code of Virginia, including Chapter 1 (§ 22.1-1 et seq.) and Chapter 7 (§ 22.1-71 et seq.). FOIA in § 2.2-3701 of the Code of Virginia also defines "scholastic records" 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." For the purposes of FOIA, school boards and schools are considered to be public bodies and scholastic records are considered public records. A comparison of FERPA's definition for "educational records" and FOIA's definition for "scholastic records" will be addressed later in this opinion.

Additionally, subsection A of § 2.2-3704 of the Code of Virginia, in relevant part, provides that:

Except as otherwise specifically provided by law, all public records shall 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 during the regular office hours of the custodian of such records. Access to such records shall be provided by the custodian in accordance with this chapter by inspection or by providing copies of the requested records, at the option of the requester. (Emphasis added).

Hence, "[a]ll public records shall be presumed open for inspection or copying unless an exemption is properly invoked" and "[a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with citizens and designated media representatives concerning the production of the public records requested" function as fundamental guidelines in applying the provisions of FOIA. FOIA provides that it is the requester's choice whether to inspect or obtain copies of the requested records.

No public body shall be required to produce records from an electronic database in a format not regularly used by the public body. However, the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. The excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation, or compilation of a new public record.

Therefore, a public body must produce and deliver nonexempt electronic records to an e-mail address if requested.

Another guideline of FOIA to be considered in our analysis is "the narrow construction rule of FOIA."⁸ FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia states: "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." The Supreme Court of Virginia recognized in Gloss v. Wheeler this specific statutory provision of FOIA, which "'puts the interpretative thumb on the scale in favor of open government."⁹ This office has previously opined that "exemptions [to FOIA] must be 'narrowly construed' in favor of disclosure."¹⁰ Additionally, "if a statute does not specifically exempt a record from disclosure, it must be made available for public inspection and copying under FOIA."¹¹ FOIA further provides that redaction of excluded information from a public record shall be conducted in accordance with § 2.2-3704.01 of the Code of Virginia and "all portions of the public record that are not so excluded shall be disclosed." Thus, FOIA contains an inherent preference for the release of information contained in public records as opposed to nondisclosure.

An exclusion to FOIA applicable to this matter may be found in subdivision A 1 of § 2.2-3705.4 of the Code of Virginia. This subdivision provides that scholastic records are excluded from mandatory disclosure by a public body except as provided in subsection B of § 2.2-3705.4 or where such disclosure is otherwise prohibited by law. Subdivision A 1 of § 2.2-3705.4 of the Code of Virginia states this exclusion as:

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. 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.

The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed.

Therefore, scholastic records are generally not subject to mandatory public release, with the exception that the records must be provided to the student, if the student is 18 years of age or older, or to the student's parents or legal guardian, if the student is under the age of 18 years. Additionally, the parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years.

Prior Advisory Opinions

This office has previously issued several advisory opinions referencing FOIA and FERPA in regard to various situations.¹² These advisory opinions acknowledged that "FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education."¹³ This office also stated that "FERPA includes within its scope virtually all public educational institutions, such as state universities, as well as many private educational institutions."¹⁴ Moreover, because FERPA addresses the disclosure of scholastic or education records, "[t]he focal point of FERPA is the protection of the privacy of students."¹⁵ In general, "FERPA prohibits access to the education records of any student that contain personally identifiable information about that student, unless the parent of the student, or the student if over the age of 18, consents to the disclosure."¹⁶ This office further opined that "[l]ike scholastic records under § 2.2-3701 of the Code of Virginia, education records under FERPA are defined as records that contain information directly related to a student."¹⁷ This office emphasized that "FOIA governs the access to 'documents,' not information" and a "school is not required to address your request for an explanation of a particular record."¹⁸ These opinions also explicitly noted that the FOIA Council "only has the authority to issue opinions relating to the interpretation of FOIA, and thus cannot offer an interpretation of the application of FERPA."¹⁹ Therefore, if there are any questions about the application of FERPA, this office continues to suggest contacting the United States Department of Education.²⁰

In one advisory opinion from 2001, this office acknowledged that FERPA's definition of education records parallels FOIA's definition of scholastic records.^{21 "}FERPA defines education records as records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."²² However, this office noted that "unlike FOIA, the decision as to whether to release education records is not left to the discretion of the public body." This difference is because "FERPA requires that any educational institution that receives public funding is prohibited from releasing any educational records without the written consent of the parents."²³ An educational institution that releases a student's educational records without proper authorization could possibly lose its federal funding.²⁴ This office also opined that certain information could be part of a student's scholastic or educational record and that "[i]n examining the parallel definitions set forth in FOIA and FERPA, one cannot construe them one way in one situation, and another way in a different situation."²⁵ This office concluded that the two requirements in deciding if a record fits the definition set forth in both FOIA and FERPA are whether the records contain "information directly related to a student and [are] in the custody of a [sic] educational agency."²⁶ Therefore, in order to access the information and satisfy the requirements of FERPA, which prohibits their release, a requester would need to obtain the written consent of a parent of the student, and after that consent has been obtained, the school system would no longer have grounds to withhold the information under either FERPA or FOIA.

In another advisory opinion from 2001, this office opined that "[s]imilar to the FOIA exemption, FERPA prohibits the release of educational records that contain personally identifiable information."²⁷ This office also stated in a third advisory opinion from 2001 that:

FERPA's definition of an educational record parallels FOIA's scholastic record definition, and defines educational records as records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.²⁸

Additionally, "FERPA states that in order to receive federal funding, an educational agency must grant parents the right to inspect and review the education records of their children," and "an educational agency may not disseminate educational records to third parties without the prior consent of the student's parents."²⁹ Lastly, this office concluded that "FOIA and FERPA both require that records directly relating to a student be released to the parents." However, this office expressed the caveat that records applicable to a student may be "intertwined with information properly subject to other FOIA exemptions."³⁰ Therefore, while parents or guardians are entitled to receive the portions of the records directly relating to their child, "other information falling under other FOIA exemptions may be redacted by the school in its discretion."³¹

In an advisory opinion from 2016, this office clearly articulated the application of the exemption in subdivision A 1 of § 2.2-3705.4 of the Code of Virginia for scholastic records in response to an inquiry regarding certain records possessed by a school board.³² This office wrote:

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 [A] 1 of § 2.2-3705.4.³³

This office also stated that it "cannot offer independent interpretations and guidance regarding statutes outside of FOIA, but we do take note of such statutes as they interact with FOIA."³⁴ This office acknowledged that "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."³⁵ However, this office ultimately concluded that "[u]nfortunately, 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."

Questions

You have submitted the following seven questions to be addressed specifically by the FOIA Council.

Question 1: Does FOIA apply to Virginia public schools when parents or guardians request copies of their child's scholastic records?

Answer: Yes, as previously referenced, § 2.2-3701 of the Code of Virginia provides a definition for "scholastic records," which defines the term as "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." There is also a previously referenced exemption in subdivision A 1 of § 2.2-3705.4 of the Code of Virginia for scholastic records that excludes such records from mandatory public disclosure while simultaneously requiring that access be provided "to the person who is the subject thereof, or the parent or legal guardian of the student."

Subsection A of § 2.2-3704 of the Code of Virginia provides that it is the requester's option (not the public body's) whether to inspect or obtain copies of the requested records. Furthermore, subsection G of § 2.2-3704 of the Code of Virginia requires public bodies to produce and deliver copies of the requested records through an electronic mail address provided by the requester "if that medium is used by the public body in the regular course of business." In this matter, LCPS's usage of electronic mail (i.e. email) makes it clear that it possesses the capability to provide records in such manner, but the statutory language dates back to a time when not all public bodies used electronic mail on a regular basis or had access to electronic mail.

Subsection F of § 2.2-3704 of the Code of Virginia specifically prohibits a public body from assessing charges to a parent or legal guardian of a minor student or a student who is 18 years of age or older for providing "scholastic records" requested pursuant to subdivision A 1 of § 2.2-3705.4 that must be made available for inspection pursuant to FERPA. However, if a parent or a guardian of a minor student or a student who is 18 years of age or older requests public records not considered "scholastic records," then a public body may assess reasonable charges not to exceed the actual cost incurred by the public body in accessing, duplicating, supplying, or searching for such records. Pursuant to subsection F of § 2.2-3704 of the Code of Virginia, "[t]he public body shall provide the requester with a cost estimate if requested."

Question 2: What if parents or guardians do not mention FOIA specifically when requesting their child's scholastic records? What if a parent or guardian just says that he or she would like a copy of the child's records?

Answer: Subsection B of § 2.2-3704 of the Code of Virginia states that "[a] request for public records shall identify the requested records with reasonable specificity." The same subsection also provides that a "request need not make reference to this chapter in order to invoke the provisions of this chapter or to impose the time limits for response by a public body." Therefore, a request by a parent or legal guardian of a minor student or by a student who is 18 years of age or older must reasonably specify or identify the records sought so that a custodian may effectively search for and access the requested records, but it need not mention FOIA specifically in order for FOIA to apply. Clear communication of the request for records sought will enable the process of producing the records to be efficient and timely. A school may possess public records that are not considered part of a student's "scholastic records." It would be best practice for the requester to specify the type of records sought and for the custodian to clarify whether the requested records are included in a student's "scholastic records" or are considered a separate category of public records.

Question 3: Can a Virginia public school choose to apply FERPA deadlines to provide records in 45 days and other provisions of FERPA instead of FOIA? For example, does the school possess the authority to determine whether to provide copies of the requested records to the parent or guardian or to require the parent or guardian to come to the school to "inspect and review" the requested records pursuant to FERPA?

Answer: Subsection B of § 2.2-3704 of the Code of Virginia provides that a request for public records "need not make reference to [FOIA] in order to invoke the provisions of this chapter or to impose the time limits for response by a public body." There is no specific provision in FOIA that prohibits the application of FERPA to a request for scholastic records. However, FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia provides that "[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, . . . all public records shall be available for inspection and copying upon request." In addition, subsection A of § 2.2-3704 of the Code of Virginia provides that access to public records "shall be provided by the custodian in accordance with [FOIA] by inspection or by providing copies of the requested records, at the option of the requester." Moreover, there are specific provisions of FOIA that impose a duty on public bodies and their officers and employees to "make reasonable efforts to reach an agreement with a requester concerning the production of the records requested."³⁶ Therefore, unless otherwise provided by law, FOIA provides that it is the requester's choice whether to inspect or obtain copies of public records.

The previously referenced email from SPPO stated that "in general, a state may have a law that provides additional rights to parents and eligible students." SPPO further qualified this understanding by stating:

However, if a state law takes away the rights afforded parents and eligible students by FERPA, then we would see this as a conflict and, if the educational agency or institution wished to continue to receive U.S. Department of Education funds, then the school would have to comply with FERPA and not the state law.

Such an interpretation is consistent with this office's understanding of the coexistence of FOIA and FERPA. Although "FOIA does not mirror FERPA word-for-word," these two laws are not necessarily in conflict with each other.³⁷ If a public body provides records in compliance with FOIA's shorter response time of five working days (or applicable extension), it would be in compliance with FERPA's longer response time of 45 days. In reading both FERPA and FOIA together, it is recommend that the shorter response time in FOIA should be used by a custodian. Furthermore, because FOIA affords requesters the right to choose whether to inspect or obtain copies of public records, a custodian cannot require parents and guardians of minor students or students 18 years of age or older come to the school to inspect and review the requested records instead or providing copies of the records if the requester chooses to obtain copies of the records.

Question 4: Must a Virginia public school provide notice to parents, guardians, and students of their rights under FOIA?

Answer: Pursuant to subsection A of § 2.2-3704.1 of the Code of Virginia, school boards must make available specific information to the public upon request and shall post a link to such information on the homepages of their respective official public government websites. This information includes:

1. A plain English explanation of the rights of a requester under this chapter, the procedures to obtain public records from the school board, and the responsibilities of the school board in complying with this chapter. For purposes of this section, "plain English" means written in nontechnical, readily understandable language using words of common everyday usage and avoiding legal terms and phrases or other terms and words of art whose usage or special meaning primarily is limited to a particular field or profession;

2. Contact information for the FOIA officer designated by the school board pursuant to § 2.2-3704.2 of the Code of Virginia to (i) assist a requester in making a request for records or (ii) respond to requests for public records;

3. A general description, summary, list, or index of the types of public records maintained by the school board;

4. A general description, summary, list, or index of any exemptions in law that permit or require such public records to be withheld from release;

5. Any policy the school board has concerning the type of public records it routinely withholds from release as permitted by FOIA or other law;

6. The following statement regarding the school board's reasonable charges for the production of public records not considered scholastic records: "A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and shall make all reasonable efforts to supply the requested records at the lowest possible cost. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records as set forth in subsection F of § 2.2-3704 of the Code of Virginia.";

7. A written policy (i) explaining how the school board assesses charges for accessing or searching for requested records and (ii) noting the current fee charged, if any, for accessing and searching for such requested records.

Subsection F of § 2.2-3704 of the Code of Virginia specifically prohibits a public body from charging fees for inspection or copies of "scholastic records" requested pursuant to subdivision A 1 of § 2.2-3705.4 of the Code of Virginia by a parent or legal guardian of a minor student or by a student who is 18 years of age or older. Additionally, pursuant to subsection F of § 2.2-3704 of the Code of Virginia, prior to conducting a search for records, a public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and inquire whether the requester would like to request a cost estimate in advance of the supplying of the requested records.

Question 5: Would it be a violation of FOIA to insist that parents or guardians requesting a copy of their child's scholastic records complete a FERPA records request form that does not inform the parents or guardians of their more expansive rights under FOIA?

Answer: Subsection A of § 2.2-3704 of the Code of Virginia provides that "[t]he custodian may require the requester to provide his name and legal address." As previously referenced, subsection B of § 2.2-3704 of the Code of Virginia provides that a request for public records "need not make reference to [FOIA] in order to invoke the provisions of this chapter or to impose the time limits for response by a public body." In addition, FOIA does not require a requester to provide a reason for requesting public records from a public body or require a requester to fill out a FOIA request form in order to file a request for records. In Advisory Opinion 07 (2011), this office wrote: "FOIA does not specify the means by which a request is to be made (such as by letter, electronic mail, facsimile, verbal, etc.) or require any particular form be used to make a request." A public body cannot require a requester to fill out a particular form to make a FOIA request or refuse to respond to a request if a requester does not use a particular form, but it may provide the requester the option of using a form for convenience and clarity.

Generally, FOIA does not require a requester to provide identification, but does allow for it as confirmation of the requester's name and legal address.³⁸ Even though verification of a requester's identity is not specifically required by FOIA, a custodian may request that additional information be provided by a requester prior to release of sensitive records like scholastic records. Due to the sensitive nature of scholastic records and provisions in FOIA and FERPA to protect the privacy of students, a school may ask for additional information to be provided by a requester submitting a request for scholastic records to ensure that the requester may be granted access as a parent or guardian of a minor student or a student who is 18 years of age or older. A school may deny access pursuant to subdivision A 1 of § 2.2-3705.4 of the Code of Virginia to a requester who is not a parent or guardian of a minor student or a student who is 18 years of age or older requesting another student's "scholastic records." This verification would be similar to requests for personnel information under subdivision 1 of § 2.2-3705.1 of the Code of Virginia, health records under subdivision 1 of § 2.2-3705.5 of the Code of Virginia, or criminal investigative files by a victim pursuant to subdivision D 1 of § 2.2-3706.1 of the Code of Virginia.

FOIA does not require a parent or legal guardian of a minor student requesting his or her child's scholastic records or a student who is 18 years of age or older requesting his or her own scholastic records to complete a FERPA records request form. However, FERPA may contain such a requirement, and because FERPA is outside the scope of FOIA, this office is unable to provide a complete determination on this issue.

Question 6: Does misleading information posted on LCPS's website and FOIA portal comply with the requirements of subsection A of § 2.2-3704.1 of the Code of Virginia that require a school board to post a link on its homepage to a "plain English explanation of the rights of a requester under this chapter, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with this chapter"?

Answer: Subsection A of § 2.2-3704.1 of the Code of Virginia, as discussed in response to Question 4 above, provides that any school board shall make available the designated information to the public upon request and shall post a link to such information on the homepage of its respective official public government website. Therefore, if the above listed information is not posted on LCPS's website, then it may be a violation of FOIA.

Many school districts have created online portals for requesters, including parents, guardians, and students, to use when submitting records request, but FOIA does not require requesters to utilize a portal for submitting requests. As previously discussed, FOIA requires public bodies to accept a records request no matter what form is used to submit it. Whether a request is made in written form or orally or whether the request specifically references FOIA or not, FOIA does not authorize a public body to accept records requests only submitted through the public body's portal. Therefore, any requester, including a parent or guardian of a minor student or a student who is 18 years of age or older, may choose whether to utilize a portal for submission of a records request to a school, school board, or school district. A request cannot be ignored or denied by a public body because the requester has determined not to use a portal and decided to use an alternative method in submitting a request.

Whether the information contained on LCPS's FOIA webpage or in its portal is accurate or misleading is not a matter that can be resolved by this office. It is recommended that public bodies comply with posting the specified provisions of FOIA as required by subsection A of § 2.2-3704.1 of the Code of Virginia and, hopefully, only provide accurate, lawful information to requesters. However, the FOIA Council does not possess the authority to compel compliance with FOIA. The courts of Virginia pursuant to § 2.2-3713 of the Code of Virginia are the entities authorized to make determinations of fact and enforce the provisions of FOIA.

Question 7: Can a school delegate its responsibility to provide parents, guardians, and students with scholastic records to a third party who assesses charges for the production of scholastic records even though FOIA prohibits the school from assessing charges for producing the same records?

Answer: FOIA does not specifically address third parties as custodians of records or prohibit a public body from delegating its responsibility in responding to FOIA requests to a third party. However, FOIA in subsection F of § 2.2-3704 of the Code of Virginia does specifically prohibit a public body from assessing charges to a parent or legal guardian of a minor student or a student who is 18 years of age or older for providing "scholastic records." Therefore, a third party acting as representative or agent of the public body would also be prohibited from assessing charges to a parent or guardian of a minor student or a student who is 18 years of age or older for the production of "scholastic records" as defined in § 2.2-3701 of the Code of Virginia. Nevertheless, if a parent or guardian of a minor student or a student who is 18 years of age or older requests public records that are not considered "scholastic records," then a public body or its designated third party may assess reasonable charges not to exceed the actual cost incurred by the public body or third party in accessing, duplicating, supplying, or searching for such records. Any charges for the production of the public records would be limited in scope and manner as previously opined by this office in numerous prior advisory opinions and as set forth in the provisions of subsection F of § 2.2-3704 of the Code of Virginia.

Conclusion

The FOIA Council's authority is limited to FOIA, and therefore, in the context of this opinion, this office may only address those issues you have raised that fall within the scope of FOIA, such as the issues you identified with LCPS's FOIA webpage.³⁹ Upon review of LCPS's FOIA webpage, it initially appears to contain the required information required by subsection A of § 2.2-3704.1 of the Code of Virginia. LCPS's FOIA webpage appears to be written in plain English and provides the contact information for the FOIA officer designated by LCPS. The webpage explains the FOIA process and includes a general description, summary, and list of commonly utilized exemptions that LCPS may cite concerning the type of public records it routinely withholds from release as permitted by FOIA. Even though the webpage does not explicitly provide the policy for withholding records from disclosure, it provides details as to how LCPS routinely reviews and responds to requests as required by subsection B of § 2.2-3704 of the Code of Virginia or other law. In addition, the website explains how LCPS assesses charges for accessing or searching for requested records and notes the current minimum rate of $23.55 per hour for accessing and searching for such requested records pursuant to FOIA.

The webpage also includes the statement: "It is the policy of LCPS to make public records available in accordance with [FOIA]." LCPS's FOIA webpage also clearly states: "LCPS does not charge for student academic records."⁴⁰ The webpage includes a link to a "FOIA Guidelines" document that provides additional information about FOIA and a link to LCPS's Public Records Center webpage where FOIA requests may be submitted. Finally, there is a link to "Fill Out a FOIA Request," which will take the requester to LCPS's portal. Nevertheless, a determination as to whether to utilize the portal is entirely voluntary as FOIA does not require a requester to use a portal or complete a request form to submit a request for public records or to invoke the right of access provided by FOIA.

However, LCPS's FOIA webpage does not appear to contain all the information required by FOIA. Specifically, the webpage does not include the exact statement required by subdivision A 6 of § 2.2-3704.1 of the Code of Virginia. It provides most of the information in the statement but the statement in full is not posted as required by FOIA. There is no reference to any duplicating fee that LCPS may charge a requester. In addition, the link to "Email FOIA" appearing below the FOIA Officer's phone number does not appear to function properly when clicked.

This office's authority is limited to providing guidance and education on the requirements of FOIA and does not include the authority to enforce or compel compliance with FOIA. In general, LCPS's FOIA webpage appears to communicate that FOIA applies to requests for public records of which LCPS is the custodian. LCPS's FOIA webpage informs requesters that academic records are maintained at the student's school and requests for those records may be made directly to the school. The webpage appears to include most of the information required to be posted by FOIA. Additional improvements, as previously noted, could be made to LCPS's FOIA webpage to ensure that LCPS's FOIA webpage is in full compliance with FOIA, specifically subsection A of § 2.2-3704.1 of the Code of Virginia. Many of the issues regarding LCPS's implementation of FERPA requirements instead of FOIA to public records are not clearly apparent on LCPS's website or FOIA webpage. Nevertheless, FOIA does not require a requester, a parent or legal guardian of a minor student requesting his or her child's scholastic records, or a student who is 18 years of age or older requesting his or her own scholastic records to utilize a portal or complete a FERPA records request form in order to request records. FERPA may contain such a requirement. However, as FERPA is outside the scope of FOIA, this office is unable to provide a complete guidance on this issue and recommends contacting the United States Department of Education's Student Privacy Policy Office (SPPO) regarding this issue specifically.

Ultimately, this office encourages all public bodies and requesters to communicate clearly throughout the FOIA process for "scholastic records" and other public records required to be disclosed under Virginia law. FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia provides that "[a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested." In addressing situations where a public body needs additional time to respond, subsection C of § 2.2-3704 of the Code of Virginia also provides that a "public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested." Regarding electronic records, subsection G of § 2.2-3704 of the Code of Virginia provides further that a "public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs."

FOIA is not intended to be "an adversarial process staking government against citizens."⁴¹ Within FOIA, there is a fundamental duty reiterated three separate times in the statute for a public body to collaborate with a requester in production of the records requested. FOIA requires a requester to identify the requested records with "reasonable specificity" and a public body to make a "good faith" effort to access, search, duplicate, and supply the records as requested.⁴² The guidance provided that "while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith."⁴³ Therefore, custodians of education and scholastic records shall make reasonable efforts to reach an agreement with parents and guardians of minor students or students 18 years of age or older concerning the production of the records requested.

This office's recommended guidance is that both FOIA and FERPA apply to education and scholastic records and that a school district, school board, and individual schools would best be served by complying with the provisions of both laws, and if possible, should avoid violating either one. By complying with the five working day response timeline of FOIA, a school district, school board, and school would also comply with the 45 day response timeline of FERPA. Otherwise, a school district, school board, and school would comply with FERPA's response timeline while violating FOIA's response timeline in subsection B of § 2.2-3704 of the Code of Virginia. Furthermore, FOIA in subsection F of § 2.2-3704 of the Code of Virginia clearly prohibits school districts, school boards, and schools from assessing parents and guardians of minor students or students 18 years of age or older charges for the production of "scholastic records" as defined in § 2.2-3701 of the Code of Virginia.

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

Matteo Murrelle
Staff Attorney

¹34 C.F.R. Part 99. 20 U.S.C.A. § 1232g.
²Natacha Paquette v. Dr. Paige Carter and the Loudoun County School Board, CL 24000465-00-3313 (Va. Cir. Ct. 2024).
³Id. 3–4.
⁴Id. 5.
⁵Id.
⁶The hyperlinks to FERPA's webpage (https://www.lcps.org/) and the FERPA Request Form (RT-20) (https://www.lcps.org/Page/217461) appear to have expired or been removed from LCPS's website since you submitted your request to this office.
⁷LCPS's website (https://www.lcps.org/o/communications/page/foia) appears to have been changed to remove this feature since you submitted your request to this office.
⁸See Freedom of Information Advisory Opinions 02 (2023), 02 (2021), 04 (2020), 01 (2020), 04 (2019), 03 (2015), 06 (2013) and 01 (2013).
⁹Gloss v. Wheeler, 301 Va. 258, 279, 887 S.E.2d 11 (2023) (citing Fitzgerald v. Loudoun County. Sheriff's Office, 289 Va. 499, 505, 771 S.E.2d 858 (2015)).
¹⁰Freedom of Information Advisory Opinion 02 (2021) (citing Virginia 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)).
¹¹Freedom of Information Advisory Opinion 04 (2019) (quoting Freedom of Information Advisory Opinion 07 (2003)).
¹²Freedom of Information Advisory Opinions 02 (2026), 08 (2024), 04 (2016), 02 (2009), 03 (2005), 13 (2004), 47 (2001), 33 (2001), 29 (2001), 13 (2001), 07 (2001).
¹³See Freedom of Information Advisory Opinions 47 (2001) and 33 (2001).
¹⁴See Freedom of Information Advisory Opinions 47 (2001) and 33 (2001).
¹⁵Id. citing 20 U.S.C.A. § 1232g (1998).
¹⁶Id.
¹⁷Freedom of Information Advisory Opinions 02 (2026), 13 (2004), and 47 (2001); note that the definition of "scholastic record" was later amended to include records related to applicants for admission as well as records related to students (see 2010 Acts of Assembly, c. 706).
¹⁸Id. Note that this opinion was issued before FOIA defined the term "information" in § 2.2-3701 for purposes of record exclusions and redaction (see 2016 Acts of Assembly, cc. 620 and 716).
¹⁹See Freedom of Information Advisory Opinions 47 (2001) and 33 (2001).
²⁰https://studentprivacy.ed.gov/contact or by phone: 1-855-249-3072.
²¹See Freedom of Information Advisory Opinion 07 (2001).
²²Id.
²³Id.
²⁴See id.
²⁵Id.
²⁶Id.
²⁷Freedom of Information Advisory Opinion 13 (2001); referencing 20 USCA § 1232g (b)(1).
²⁸Freedom of Information Advisory Opinion 29 (2001).
²⁹Id.
³⁰Id.
³¹Id.
³²See Freedom of Information Advisory Opinion 04 (2016).
³³Id.
³⁴Id.
³⁵Id.
³⁶See Va. Code Ann. §§ 2.2-3700(B), 2.2-3704(C), and 2.2-3704(G).
³⁷Freedom of Information Advisory Opinion 02 (2026).
³⁸See Freedom of Information Advisory Opinion 05 (2018).
³⁹https://www.lcps.org/o/communications/page/foia (last accessed on 4/2/26).
⁴⁰Id.
⁴¹Freedom of Information Advisory Opinion 16 (2004).
⁴²See Freedom of Information Advisory Opinions 5 (2024), 3 (2023), 4 (2018), and 4 (2010).
⁴³Freedom of Information Advisory Opinion 4 (2010).