May 5, 2004

Mr. Mark D. Hjelm
Woodbridge, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in the correspondence that you delivered to this office on February 18, 2004.

Dear Mr. Hjelm:

You have asked a question concerning the response you received to your request to Prince William County Schools ("the School") for records under the Virginia Freedom of Information Act (FOIA). You indicate that the school board has adopted a regulation concerning employee and visitor identification badges, and you requested copies of any memos, notes, rough drafts or correspondence concerning visitor monitoring and identification badges relating to this regulation.¹ The School responded in writing, and stated that the information that you requested was exempt from disclosure, but did not cite a specific statutory exemption. The School did provide you with a copy of House Bill 2621 (2003), relating to school safety audits. You indicate that you made a second request for any memos, notes, rough drafts or correspondence concerning visitor monitoring and identification badges, and the School sent you an identical response.

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. The policy of FOIA set forth in subsection B of § 2.2-3700 states that the provisions of FOIA shall be liberally construed to promote access, and that [a]ny exemption from public access to records or meetings shall be narrowly construed. When a public body elects to exercise a statutory exemption to withhold all or part of the requested records, subsection B of § 2.2-3704 requires that the public body respond in writing, identify with reasonable particularity the volume and subject matter of the withheld records, and cite the specific Code section that authorizes the withholding.

Although the school responded to your request in writing, it did not cite a specific statutory exemption allowing the requested records to be withheld as required by subsection B of § 2.2-3704. Because the School provided you with a copy of House Bill 2621, one could surmise that the School was relying on subdivision A 85 of § 2.2-3705 , a FOIA exemption created by that bill during the 2003 Session of the General Assembly. However, including a reference to a bill does not satisfy the procedural requirements of FOIA to cite a specific statutory exemption in order to withhold records, making the School's response improper.

Assuming that the School was attempting to invoke the exemption found at subdivision A 85 of § 2.2-3705, which exempts [s]ecurity plans and specific vulnerability assessment components of school safety audits, as provided in § 22.1-279.8, you ask if the records you requested would fall under this exemption. Section 22.1-279.8 requires school boards to annually conduct a school safety audit, which is a written assessment of the safety conditions of each school under its supervisory control. The school safety audit identifies and develops solutions for safety concerns and identifies and evaluates patterns of school safety concerns. Recommended actions may include changes to physical structures, safety policies, or standards for student conduct. Section 22.1-279.8 requires that the results of a school safety audit be made available to the public within 90 days of completion, but allows security plans and specific vulnerability assessments to be withheld pursuant to the exemption mentioned above.

The School's apparent reliance on the exemption for portions of school safety audits appears to be overly broad. The exemption applies only to portions of the audit itself, a very specific document defined in § 22.1-279.8, and not to any and all records that may reference the School's security or security procedures. The discretion to withhold security plans and vulnerability assessments from the audit must be construed narrowly, and may only be applied to portions of the audit whose release would present a security threat or make public the portions of an analysis that uncover weaknesses in existing plans. In this case, you requested documents relating to an existing school board regulation. To the extent that the annual school safety audit was responsive to your request and identified a security vulnerability in the regulation, that portion of the audit may be withheld under this exemption. The exemption would not apply to the school safety audit as a whole, or to other responsive records that exist independently of the audit. There may be other applicable security-related exemptions that would allow certain other records related to security procedures and vulnerabilities to be withheld, but the school must specifically cite these exemptions in response to your request. Because your request refers to records relating to a published, public security procedure, it is unlikely that all documents responsive to your request are subject to exemption under FOIA. However, to withhold any of the requested records from disclosure, whether the records are exempt portions of a school safety audits or may be withheld under other FOIA exemptions, the School must respond in writing, identify with reasonable particularity the volume and subject matter of the withheld records, and cite the specific statutory exemption or exemptions that allow the records to be withheld.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Prince William County School Regulation 501.06-1 (2003).