SCHOOLS. SCHOOL BOARDS. RELEASE BY SCHOOL BOARD OF FACT-FINDER'S AWARD IN TEACHER GRIEVANCE MAY VIOLATE TEACHER'S RIGHT TO PRIVATE HEARING; VIOLATES NEITHER VIRGINIA FREEDOM OF INFORMATION ACT NOR PRIVACY PROTECTION ACT OF 1976.

September 6, 1983

The Honorable Warren G. Stambaugh,
Member, House of Delegates

83-84 314

You ask several questions involving the following fact situation, which I quote from your letter.

"During the early part of this year the Arlington School Board upheld a fact-finder's decision sustaining the grievances of two Arlington teachers. The following morning a reporter requested and was given, by the clerk of the School Board, a copy of the fact-finder's award. The two teachers subsequently filed grievances concerning the release of this document and those grievances were denied."

You have confirmed that the fact-finder's award contained all of the facts and details upon which the award was based. I will answer your questions in the order raised.

"1. Are all or any of the written documents which are a part of the grievance procedure outlined in sections 22.1-306 through 22.1-314 of the Code of Virginia personnel records and/or personal information as defined in the Virginia Freedom of Information Act (§2.1-340 et seq.) and the Privacy Protection Act of 1976 (§ 2.1-377 et seq.)?"

The Virginia Freedom of Information Act does not define the term "personnel records." Normally, personnel records include those records maintained by a public agency which identify an employee, his rank or classification, rate of pay, performance and/or job history. The Privacy Protection Act of 1976 defines "personal information" in § 2.1-379(2) as follows:

"all information that describes, locates or indexes anything about an individual including his real or personal property holdings derived from tax returns, and his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or that affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such individual. . . ."

Obviously, not all documents introduced at a grievance hearing would fall into these definitions. Necessarily, your question can be answered only by examining the specific document. Nonetheless, simply because an exhibit is introduced into the hearing does not transform it into a "personnel record" or "personal information."

Your second question reads as follows:

"2. Does either the Virginia Freedom of Information Act or the Privacy Protection Act of 1976, or both, prohibit the disclosure of grievance procedure documents which are either personnel records and/or personal information without the permission of the grievant?"

Your question is answered in the negative. Although personnel records are expressly exempt from mandatory public disclosure under the Virginia Freedom of Information Act (§2.1-342(b)(3)), disclosure is permitted if the custodian of the records chooses to disclose them. Moreover, the Privacy Protection Act of 1976 does not prohibit the dissemination of records containing personal information where dissemination is otherwise permitted or required by law. See 1977-1978 Va. AG 481. See, also, Hinderliter v. Humphries, 224 Va. 439, 297 S.E.2d 684(1982); 1980-1981 Va. AG 299; 1978-1979 Va. AG 317.

Your third question reads as follows:

"3. If neither the Virginia Freedom of Information Act nor the Privacy Protection Act of 1976 prohibits the disclosure of grievance procedure documents, is such disclosure prohibited either by the provisions of § 22.1-311 requiring that grievance hearings before the school board be private unless the teacher requests a public hearing, or by the provisions of § 22.1-312(C) requiring that a hearing of a factfinding panel be private if the teacher so requests?"

As you have noted, § 22.1-311 explicitly grants a teacher the specific right to have his or her grievance heard by the school board in private.¹ Further, § 22.1-312(C) grants the teacher a private hearing before the fact-finding panel at the teacher's request.² Finally, in cases in which the school board holds a hearing subsequent to the fact-finding panel, the privacy interests are likewise guaranteed. Section 2.1-313(D).³

It is an accepted principle of statutory construction that statutes be read in pari materia in order to give full force and effect to each provision. A statute is construed to promote the legislative purpose. See 1980-1981 Va. AG 265; Dowdy v. Franklin, 203 Va. 7, 121 S.E.2d 817 (1961). The General Assembly manifestly has established the teacher's right to a private hearing in a grievance situation, and this express right is not overridden by either the Virginia Freedom of Information Act or the Privacy Protection Act of 1976.

Passage of § 22.1-313(E), which became effective on July 1, 1983, moreover supports this conclusion. Section 22.1-313(E) provides that certain persons who participate in the earlier grievance hearings may not be present during the school board's deliberations on the grievance. However, "immediately after a decision has been made and publicly announced, as in favor of or not in favor of the grievant" those persons may join the school board in executive session to "assist in the writing of the decision." In view of the express right to a private grievance hearing and the foregoing statutory language clearly limiting what may be disclosed publicly, I am of the view that, absent clear legislative direction to the contrary or consent of the parties, a school board may not publicly disclose its findings of fact with respect to a teacher grievance to the extent such facts were determined on evidence submitted during a privately held grievance hearing. The school board may, however, announce whether its decision was "in favor of or not in favor of" the grievant. As to the documents or exhibits which make up the record of the hearing, every effort should be made to maintain the spirit of privacy intended by the General Assembly in such matters; however, if the exhibits have some existence independent of the grievance hearing they may be disclosed, in the discretion of the board, unless otherwise prohibited by law.⁴

Your next question reads as follows:

"4. If disclosure of grievance documents is not prohibited by any of the previously cited statutes, may a school board disclose grievance documents in a selective manner by:

A. disclosing documents only in certain cases?

B. disclosing only some documents in a particular case?

C. disclosing some documents in one case and different documents in another case?

D. disclosing the same documents in every case in which it discloses documents, but not disclosing documents in every case?

E. disclosing the same documents and disclosing them in every case?

The answer to question 3 is responsive to this inquiry. Such a determination must be made by examining the specific documents.⁵

In your last question you ask:

"5. If disclosure of grievance documents is not prohibited, what rights, if any, does the grievant have under the Privacy Protection Act of 1976?"

Generally, the Privacy Protection Act grants a data subject the right to examine his file and make corrections or additions thereto. See, e.g., § 2.1-382. In addition, any aggrieved person may institute a proceeding for injunction or mandamus "against any person or agency which has engaged, is engaged, or is about to engage in any acts or practices in violation" of the provisions of the Privacy Protection Act. See § 2.1-386.

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FOOTNOTES

1 Section 22.1-311 provides: "The hearing before the school board . . . shall be private unless the teacher requests a public one. . . ."

2 Section 22.1-312(C) provides: "The panel shall determine the propriety of attendance at the hearing of persons not having a direct interest in the hearing, provided that, at the request of the teacher, the hearing shall be private."

3 Section 22.1-313(D) provides: "In any case in which a further hearing by a school board is held after a hearing before a fact-finding panel . . . [s]uch hearing shall be conducted as a hearing by the school board as provided in section 2.1-311."

4 I assume that the teacher has not waived any claim to privacy by making a partial public disclosure of certain information favorable to the teacher. Such a disclosure might be regarded as a waiver by the teacher of any privacy provided by these statutes.

5 Of course, where disclosure is contemplated by law as, for example, when the board must transmit the record to the circuit court for a determination of grievability under § 22.1-314, such disclosure may be properly made.