June 25, 1975

THE HONORABLE VINCENT F. CALLAHAN, JR.
Member, House of Delegates

74-75 581

This is in response to your recent letter wherein you inquire whether the Virginia Freedom of Information Act would require the Fairfax County School Board to disclose publicly, upon request, the results of scholastic achievement tests administered to students in the County public schools, which results would reflect scores on a school-by-school average.

The Virginia Freedom of Information Act, in §2.1-342(a), Code of Virginia (1950), as amended, requires public disclosure of all official records of governmental bodies, including local school boards, except for those categories of records specifically exempted by the provisions of §2.1-342(b), subsections (1)-(5), or other applicable statutes. Section 2.1-342(b), subsection (3), provides an exception from the disclosure requirements for several categories of records, including:

"(3) State income tax returns, medical and mental records, scholastic records and personnel records, except that such access shall not be denied to the person who is the subject thereof. . . ." (Emphasis added.)

The above-quoted exception to the general records disclosure rule has been the subject of a prior opinion to the Honorable Thomas A. Graves, President of the College of William and Mary, dated December 3, 1973, and found in the Report of the Attorney General (1973-74) at 454. In that opinion, it was held that certain personnel records, including "faculty rosters, names and addresses of employees, statistical data pertaining to employees such as percentages of minority group employees," were not required to be disclosed inasmuch as they were personnel records exempt from required disclosure pursuant to §2.1-342(b), subsection (3). The records in question in that instance pertained to or contained information concerning identifiable individual personnel and were, consequently, within the ambit of confidentiality afforded to individuals by the exemption provided by subsection (3). In contrast, the records which are the subject of your inquiry, scholastic achievement test scores reported on a school-by-school basis, do not contain information of a personal nature and are not identifiable with individual students. Accordingly, I am of the view that such records are not within the intended scope of confidentiality provided for individuals by subsection (3) of §2.1-342(b).

Recent amendments to provisions of the Freedom of Information Act are supportive of this interpretation of the scholastic records exception. In this regard I would first note that the 1974 General Assembly amended the definition of "official records" in §2.1-341(b), thereby evidencing an intention to broaden the disclosure requirements of the Act. In addition, 1975 amendments included a new provision, §2.1-341(f), defining scholastic records as records "containing information about a student", which language clearly limits the scholastic records exception to records pertaining to identifiable individual students.

I am, therefore, of the opinion that scholastic achievement test scores, reported on a school-by-school basis, are subject to the public disclosure requirements of §2.1-342(a).