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July 14, 2004
Mr. Michael J. Garton
Chesapeake, 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 your facsimile of March 24, 2004.
Dear Mr. Garton:
You have asked whether you may access copies of records related
to your daughter's audition for admission to the theater department
of a state-supported university under the Virginia Freedom of
Information Act (FOIA).
You indicate that your daughter has been accepted to attend the
university, but was required to audition to be accepted to the
theater department to major in performance. Your daughter was not
accepted into the department, and you requested copies of her
audition and interview evaluation forms completed by each member of
the audition committee. In addition, you requested a copy of the
procedures given to the audition committee to be used in evaluating
the candidates. You indicate that the university initially
responded that it was not its policy to release the documents that
you requested. You state that you sent a follow-up e-mail,
specifically requesting the records under FOIA, but that you have
not received a response to this request. You ask if the evaluation
forms must be released to the student or the student's parent, or
if they are protected from disclosure.
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.
Subdivision 1 of § 2.2-3705.4 provides an exemption for
[s]cholastic 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. FOIA defines "scholastic
records" at § 2.2-3701 as records containing information
directly related to a student and maintained by a public body that
is an educational agency or institution or by a person acting for
such agency or institution. These provisions in FOIA parallel
the requirements of the federal Family Education Rights and Privacy
Act (FERPA)1, which applies to all
educational institutions. FERPA establishes a general requirement
that educational records are private, and may not be released to
third parties. However, FERPA also requires that educational
records be accessible to the subject of the record or the parents,
if the student is under the age of 18. Federal regulations indicate
that once a student turns 18 years or enrolls in an institution of
post-secondary education, the right of access passes from the
parent to the student.2
While FOIA and FERPA allow access to educational records by the
subject of those records, both exclude from this requirement access
to what are known as "sole possession records." Both FOIA and FERPA
state that no student shall have access to...records of
instructional, supervisory, and administrative personnel and
educational personnel ancillary thereto, which are in the sole
possession of the maker thereof and that are not accessible or
revealed to any other person except a substitute.3 Federal regulations interpret this to mean that
records kept in the sole possession of the maker, which are used
only as a personal member aid and are not accessible or revealed to
any other person, need not be disclosed, even to the subject of the
records.4 In the facts you present,
records kept by the various audition committee members for their
own personal use as a memory aid would not be available under FOIA
or FERPA. However, this would not include notes and comments made
on standardized audition scorecards or evaluation forms. Therefore,
both FOIA and FERPA would require the release, to your daughter, of
records relating to her audition, other than those created and
maintained for an individual interviewer's sole use and possession.
Furthermore, to the extent that they exist, written procedures and
guidelines to be used by the members of the panel in evaluating
auditions would be subject to disclosure to any requester, because
such a record would not contain information concerning identifiable
students and would not be protected by either FERPA or the
scholastic records exemption under FOIA.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
120 USCA § 1232g.
234 CFR § 99.5(a).
3See subdivision 1 of § 2.2-3705.4
and 20 USCA § 1232g (a)(4)(B), respectively
434 CFR § 99.3.
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