PRIVACY ACT Arlington County Environmental Health Department May Disclose Master List And Supporting Files Health inspections of restaurants, grocery stores and similar businesses Disclosure required by Freedom of Information Act.

CONFLICT OF LAWS Conflict Between Privacy Protection Act And Freedom Of Information Act On Letters Of Reference No conflict in disclosure of master list of health inspections of businesses.

PRIVACY ACT Master List On Health Inspections Contains Information About Businesses, Not Individuals Act would not apply to dissemination of such records.

RECORDS Master List And Supporting Files On Health Inspections Of Restaurants Are ``Official Records" As Defined In Freedom Of Information Act.

October 25, 1977

THE HONORABLE JERRY K. EMRICH
County Attorney for Arlington County

77-78 309

This is in reply to your letter wherein you ask whether the Privacy Protection Act prohibits the Arlington County Environmental Health Department's disclosure, upon citizen request, of its master list and supporting files pertaining to health inspections of restaurants, grocery stores and similar establishments. You indicate that the master list contains the name and address of an establishment, the date of last inspection and the number of health violations. Supporting files contain, among other things, inspection reports, citizen complaints and narrative reports by inspectors regarding action taken relative to complaints.

Both the master list and the supporting files relative to inspections of establishments are "official records" of the Arlington County Environmental Health Department as defined in the Freedom of Information Act, §§2.1-340 through -346.1 of the Code of Virginia (1950), as amended. The Freedom of Information Act requires that official records of governmental agencies be disclosed for public inspection upon citizen request unless otherwise specifically provided by law. See §2.1-342(a). No provision of the Freedom of Information Act would, in my opinion, provide an exemption of these records from required disclosure. Further, I have reviewed Title 32 of the Code, which contains the health laws of the Commonwealth, and can find no provision which would prohibit or otherwise limit disclosure of such records.

The Privacy Protection Act of 1976 was enacted with the stated purpose of ensuring safeguards for personal privacy by record keeping agencies of the Commonwealth and her political subdivisions. It does not generally prohibit agency disclosure of records containing "personal information." See § 2.1-380, paragraph 1. Rather, it requires certain administrative procedures attendant to the collection and dissemination of "personal information" otherwise required or permitted by law. See §2.1-380, paragraphs 2-9. The Act's provisions, in any event, apply only to collection and dissemination of records containing "personal information" as defined in §2.1-379, paragraph 2. The master list, as described in your letter, does not, in my opinion, contain personal information as defined in §2.1-379, paragraph 2, since the master list contains information about businesses, not individuals. Accordingly, the Privacy Protection Act would not apply to dissemination of such records.

With respect to the supporting files, I am unable to determine whether there are, in such files, records containing personal information about individuals. To the extent that supporting files do contain personal information, their disclosure would not be prohibited by the Privacy Protection Act. As I noted above, §2.1-380, paragraph 1, does not prohibit disclosure of personal information, but provides that agencies shall disseminate only that personal information permitted or required by law to be disseminated. Inasmuch as the Freedom of In formation Act requires disclosure of such records pursuant to §2.1-342(a), I am of the opinion that the Arlington County Environmental Health Department's disclosure of supporting files would be consistent with the provisions of the Privacy Protection Act.

The situation presented by your inquiry is readily distinguishable from that involved in my recent opinion to John W Garber, Director, Department of Personnel and Training, dated May 20, 1977, a copy of which I enclose. In the Garber Opinion I ruled that because the Privacy Protection Act, specifically §2.1-382B, prohibited disclosure of recommendations or letters of reference contained in agency personnel files, the Privacy Act, as the later enactment, controlled over conflicting provisions of the Freedom of Information Act [§2.1-342(b)(3)], requiring disclosure of such records to the data subject. In this instance, however, there is no conflict between the requirement of disclosure under the Freedom of Information Act and the Privacy Protection Act, since no provision of the latter statute prohibits disclosure of the records here in question.