ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT. MINES AND MINING: GENERAL AND ADMINISTRATIVE PROVISIONS.

Certificates issued by Board of Examiners of Department of Mines, Minerals and Energy considered public documents, not exempt from disclosure under Act. Names and qualifications of job applicants and notes evaluating identifiable applicants considered "personnel records," exempt from mandatory disclosure. Test/examination used by Department for rating or selection of job applicants and results of individual applicants' performance on such test exempt from mandatory disclosure as personnel record. Document containing general selection or rating criteria applicable to all candidates for particular position subject to disclosure under Act; ratings of individual applicants using such criteria considered personnel records exempt from mandatory disclosure to persons other than applicants.

December 5, 1991

The Honorable J. Jack Kennedy Jr.
Member, Senate of Virginia

1991 9

You ask the following questions concerning The Virginia Freedom of Information Act, §§ 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"):

1. Does the Act require the Board of Examiners (the "Board") of the Department of Mines, Minerals and Energy (the "Department") to disclose the number, date of issuance and type of certificates the Board issues to persons certified to work in mines?

2. Does the Act require the Department to disclose the name and qualifications of applicants for employment with the Department, the selection panel's notes concerning each applicant interviewed and the names of the applicants recommended for employment?

3. Does the Act require the Department to disclose the selection or rating criteria used to rank applicants at various times during the selection process, and the ranking of individual applicants?

I. Applicable Statutes

The Act is designed to ensure "the people of this Commonwealth ready access to records in the custody of public officials." Section 2.1-340.1(A), set out in Ch. 538, 1990 Va. Acts 784, 785 (Reg. Sess.). Section 2.1-342(A) provides, in part, that,

[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of this Commonwealth, representatives of newspapers and magazines with circulation in this Commonwealth, and representatives of radio and television stations broadcasting in or into this Commonwealth.

Section 2.1-342(A) further provides:

Public bodies shall not be required to create or prepare a particular requested record if it does not already exist. Public bodies may, but shall not be required to, abstract or summarize information from official records or convert an official record available in one form into another form at the request of the citizen.

The term "official records," as it is used in the Act, is defined as

all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.

Section 2.1-341.

A "public body" is defined as "any of the groups, agencies or organizations enumerated in the definition of `meeting ' as provided in this section, including any committees or subcommittees of the public body created to perform delegated functions of the public body or to advise the public body." Id. The public bodies listed in the definition of "meeting" include "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or any political subdivision of the Commonwealth." Id.

Section 2.1-342(B) provides:

The following records are excluded from the provisions of [the Act] but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

* * *

3. State income, business, and estate tax returns, personal property tax returns, scholastic records and personnel records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof. . . .

* * *

9. Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student's performance, (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body.

As used in this subdivision 9, "test or examination" shall include (i) any scoring key for any such test or examination, and (ii) any other document which would jeopardize the security of such test or examination. Nothing contained in this subdivision 9 shall prohibit the release of test scores or results as provided by law, or limit access to individual records as is provided by law. However, the subject of such employment tests shall be entitled to review and inspect all documents relative to his performance on such employment tests.

When, in the reasonable opinion of such public body, any such test or examination no longer has any potential for future use, and the security of future tests or examinations will not be jeopardized, such test or examination shall be made available to the public.

Chapters 1 (Sections 45.1-1.1 through 45.1-33) through 14 (Sections 45.1-158 through 45.1-161) of Title 45.1 comprise the Virginia Mine Safety Law of 1966. See § 45.1-1.10.

Section 45.1-12 provides:

The Board may require certification of persons who work in mines. . . .

The Board may require examination of applicants for certification, and may require such other information from applicants as may be necessary to ascertain competency and qualifications for each particular job skill. The examinations herein provided for shall be conducted under such rules, conditions and regulations as the Board shall deem most efficient. . . .

Section 45.1-14 describes the types of certificates of competency which the Board is authorized to grant.

II. Certificates Issued by Board Not Exempt from Disclosure Under Act

You ask whether the Act requires the Board to disclose to a third party the number, date of issuance and type of certificate issued to a person certified to work in mines. For purposes of the Act, it is important to distinguish between a request for information and a request for documents. Section 2.1-342 concerns only the latter. The Act thus guarantees citizen access only to existing written documents and other physical records. It specifically does not require a public body to create new records, to abstract or summarize information from existing official records, or to convert records from one form to another. I assume, therefore, for purposes of this Opinion, that your question concerns the disclosure of copies of actual individual certificates, or that a document already exists that lists certificate types, numbers and issuance dates for current certificate holders. If no such list exists, the Board is not required to create one. See § 2.1-342(A)(4).

The Act permits, but does not require, agencies to disclose personnel information to persons other than the individual who is the subject of the information. Section 2.1-342(B)(3); see also 77-78 Va. AG 310; cf. *76-77 Va. AG 210* (state agencies must permit employee access to own personnel records).

Prior Opinions of this Office interpreting the "scholastic records and personnel records" exemption from disclosure under § 2.1-342(B)(3) have limited its application to records within the Act's intended scope of confidentiality that contain personal information concerning individual students or employees. See, e.g., *74-75 Va. AG 581* (report of school-by-school achievement test results not identifying performance of individual students is subject to disclosure). While the certificates issued by the Board reveal the fact that the certificate holder has passed the tests and met the other relevant criteria for certification, they do not contain test scores or other indicators of individual performance, nor do they reveal other information of a personal nature that the certificate holder may have provided on his or her application to be certified.

In fact, the only obvious purpose of issuing these certificates in written form is to give the certificate holder and the public documentary proof that has been certified. For that reason, in my opinion, the certificate itself is fundamentally a public document that, in contrast to employment applications, evaluation forms and other personnel records prepared or maintained by an agency for its own internal administrative purposes, falls outside the scope of the exemption in § 2.1-342(B)(3),¹ and must be disclosed on request. It is further my opinion that a document listing only the information contained on one or more such certificates, if such a document exists, also would be subject to disclosure under the Act.

III. Names of Employment Applicants, Qualifications of Identifiable Applicants and Evaluator's Notes of Identifiable Applicants Are "Personnel Records" Exempt from Mandatory Disclosure

You next ask whether the Act requires the Department to disclose the name and qualifications of applicants for employment, the selection panel's notes concerning each applicant interviewed and the names of the applicants recommended for employment during the selection process.

Prior Opinions of this Office conclude that applications for public employment are personnel records. 81-82 Va. AG 433; *73-74 Va. AG 456*. Another prior Opinion concludes that § 2.1-342(B)(3) exempts a local governing body from disclosing the names and applications of applicants for appointment to a position on a public board or commission. See 81-82 Va. AG, supra, at 434. It is my opinion, therefore, that under § 2.1-342(B)(3), the Board and the Department are not required to disclose the names, applications or qualifications of applicants for employment, notes of interviews with applicants, or the names of applicants recommended for employment.²

A report that evaluates the performance of a city school superintendent also has been considered a personnel record. See *74-75 Va. AG 580*. Notes evaluating an identifiable employment applicant are similar to the performance evaluation of an employee.

IV. Tests Used to Rate Applicants and Ratings of Individuals Exempt from Disclosure Under Act; General Selection Criteria Not Exempt

Your third question is whether the Act requires the Board and the Department to disclose the selection or rating criteria used to rank job applicants at various times during the selection process, and the ranking of individual applicants.

Section 2.1-342(B)(9) exempts from disclosure "[a]ny test or examination used, administered or prepared by any public body for purposes of evaluation of . . . (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion." In my opinion, therefore, any test or examination used by the Department for the rating or selection of job applicants would be exempt from mandatory disclosure under § 2.1-342(B)(9).³ It is further my opinion that the results of individual applicants' performance on such a test would be exempt from disclosure as a personnel record. See § 2.1-342(B)(3), (9).

Assuming that a document exists containing general selection or rating criteria that apply to all candidates for a particular position, no exemption from the mandatory disclosure provisions of the Act applies to such a document, and it is my opinion that it must be disclosed. It is further my opinion, however, based on the above, that ratings of individual applicants using such criteria are personnel records exempt from mandatory disclosure to persons other than the applicants themselves. See *74-75 Va. AG 580.*

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FOOTNOTES

1 But see 79-80 Va. AG 301, concluding that § 2.1-342(B)(3) exempts teaching certificates from disclosure under the Act because they "contain the professional qualifications of teachers." I am advised by the Department of Education, however, that the teacher certificate in use at the time that Opinion was rendered contained detailed information about the individual teacher more clearly personal in nature than anything found on the certificate about which you inquire.

2 You note that the Commonwealth of Virginia's Application for Employment, DPT Form § 10-012, contains a statement that "[i]nformation contained on this application may be disseminated to other agencies, nongovernmental organizations or systems on a need-to-know basis for good cause shown as determined by the agency head or designee." While this statement may permit the Board or the Department to make limited disclosure of application information, it does not require any disclosure. The same is, of course, true of § 2.1-342(B), which exempts various categories of records from mandatory disclosure, but does not prohibit disclosure of any record.

3 Section 2.1-342(B)(9) further provides that "[w]hen . . . any such test or examination no longer has any potential for future use, and the security of future tests or examinations will not be jeopardized, such test or examination shall be made available to the public." This exception to the general exemption for tests would apply to any test no longer used by the Department.