June 24 , 2003

Mr. Leonard G. Cooke, Director
Department of Criminal Justice Services
Richmond, 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 letter of May 16, 2003.

Dear Mr. Cooke:

You have asked a question about the application of the Virginia Freedom of Information Act (FOIA) to school safety audits required to be conducted by public schools and forwarded to the Virginia Center for School Safety ("the Center") at the Department of Criminal Justice Services.

Section 22.1-279.8 of the Code of Virginia requires all public schools to annually conduct a school safety audit.¹ Subsection A of § 22.1-279.8 defines an audit as a written assessment of the safety conditions at each public school to (i) identify and, if necessary, develop solutions for physical safety concerns, including building security issues and (ii) identify and evaluate any patterns of student safety concerns occurring on school property or at school-sponsored events. Solutions and responses shall include recommendations for structural adjustments, changes in school safety procedures, and revisions to the school board's standards for student conduct. Subsection B of § 22.1-279.8 requires that each school submit its audit to the relevant school division superintendent, and that the superintendent in turn submit all of the audits of the schools in the division to the Center. Subdivision A 4 of § 9.1-184 requires the Center to [c]ollect, analyze, and disseminate various Virginia school safety data, including school safety audit information submitted to it pursuant to § 22.1-279.8.

The 2003 Session of the General Assembly amended subsection A of § 2.2-3705 to create a new FOIA exemption for [s]ecurity plans and specific vulnerability assessment components of school safety audits, as provided in § 22.1-279.8.² Subsection B of § 22.1-279.8 requires that the results of school safety audits be made public within 90 days of completion. However, the local school board retains the authority to withhold or limit the release of security plans and specific vulnerability assessment components in the audits pursuant to the FOIA exemption. In light of this new exemption, you ask whether school divisions must submit the entire audit to the Center, or whether a division may withhold those portions of the audit that the school board designates as security plans or specific vulnerability assessment components.

Generally, FOIA sets forth the procedures for a public body to follow in responding to a request for public records. In responding to requests, a public body has the discretion to withhold records or portions of records that are subject to a statutory exemption. However, in addition to the general rules concerning production of records, the Code also mandates that certain records be made available to other governmental entities or persons in the course of the transaction of public business. The Supreme Court of Virginia has held that as a rule of statutory construction, "When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails."³

Applying this rule of statutory construction to the school safety audits, FOIA sets forth general provisions relating to access to records, and when a copy of the school safety audit is requested by a citizen or the media, the exemption allows certain portions to be withheld. However, the Code also more specifically mandates that the school safety audits be submitted to the Center. FOIA, a law of general applicability, should not be construed so as to interfere with interagency information sharing mandated by the Code and internal government administration. The specific mandate for superintendents to submit a copy of the audits to the Center supercedes the general FOIA exemption that would allow portions of the audits to be withheld from the general public. As a result, in submitting the school safety audits to the Center, a school superintendent could not invoke the FOIA exemption and withhold portions of the audits relating to security plans or specific vulnerability assessments.

In follow-up to this question, you note that once the school safety audits are submitted to the Center, the Center will become a custodian of these records and may receive a FOIA request for these records. You ask if the Center would then have the discretion to decide what information in an audit is a security plan or specific vulnerability assessment component for purposes of the exemption. Subsection B of § 22.1-279.8 is clear on this issue. It states that [t]he local school board shall retain authority to withhold or limit the release of any security plans and specific vulnerability assessment components as provided in § 2.2-3705. The exemption references this section, stating that the particular information may be withheld pursuant to § 22.1-279.8. Therefore, the Center would be able to invoke the exemption if it received a FOIA request for the audits. However, it would not be in the Center's discretion to determine what particular information in any given audit is subject to the FOIA exemption. The Center must withhold the information designated by the appropriate school board as a security plan or vulnerability assessment component.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ This opinion will rely on the language of Virginia Acts of Assembly Chapter 801 (2003). This Chapter amends § 22.1-279.8 relating to school safety audits and creates a FOIA exemption for certain portions of the audits. The amendments found in Chapter 801 will become effective July 1, 2003.

² See Virginia Acts of Assembly Chapter 801 (2003). The exemption will be at subdivision A 85 of § 2.2-3705 (effective July 1, 2003).

³ See Thomas v. Commonwealth, 244 Va. 1, 419 S.E. 2d 606 (Va. 1992), Hudler v. Cole, 236 Va. 389, 374 S.E. 2d 39 (Va. 1988), Va. Nat'l Bank v. Harris, 220 Va. 336, 257 S.E. 2d 867 (Va. 1979).