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June 7, 2001
Mr. Horace McGhee
Manassas, 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 phone conversations of April 27
and May 7, 2001.
Dear Mr. McGhee:
You have asked whether you may access documents relating to
investigations at a public high school under the Virginia Freedom
of Information Act (FOIA). The investigations stem from an alleged
assault of your son, a student at the school, by a teacher. You
have been told by the school administration that two investigations
were conducted -- one by the school principal and the other by the
school superintendent -- and that both investigations found no
merit in your son's claims. You indicate that when you asked to see
the records relating to the investigations, the school responded
that the documents were exempt from FOIA pursuant to the scholastic
records exemption, the personnel records exemption, and the
attorney-client privilege exemption. You ask if these exemptions do
indeed bar you from viewing the records concerning the
investigation into your son's alleged assault.
This analysis will first turn to the various exemptions invoked
by the school in response to your request. Subdivision A. 3. of
§ 2.1-342.01 allows a public body to withhold [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 a scholastic record at § 2.1-341 as
records containing information directly related to a student and
maintained by a public body which is an educational agency or
institution or by a person acting for such agency or
institution. This office has previously interpreted the
definition of a scholastic record to include more than just records
of grades or academic performance.1
The records of the investigations most likely contain information
directly related to your son and the records are maintained by the
school, making them scholastic records. The exemption clearly
states that while such records may generally be withheld from the
public, they are to be made available to the parent of the
identified student. As such, it is unclear why the school would
invoke this exemption in response to your request.
Subdivision A. 4. of § 2.1-342.01 exempts [p]ersonnel
records containing information concerning identifiable
individuals. The records of the investigation would likely
contain information concerning the teacher involved in the
incident, and in addition to being scholastic records, could also
likely be classified as personnel records.
Finally, the school also cited subdivision A. 7. of §
2.1-342.01, which allows a public body to withhold [w]ritten
advice of legal counsel to state, regional or local public bodies
or public officials and any other records protected by the
attorney-client privilege. To the extent that the investigation
records also included correspondence to and from the school's legal
counsel concerning such topics as possible actions to be taken or
discussion of potential litigation, these records may properly be
withheld. However, this exemption would not cover all records
related to the investigations conducted by the principal and
superintendent merely because they were shared with the school's
attorney.
In addition to the FOIA exemptions cited by the school, the
federal Family Educational Rights and Privacy Act of 1974 (FERPA),
which governs dissemination of education records by an educational
agency, is also directly relevant.2
FERPA's definition of an educational record parallels FOIA's
scholastic record definition, and defines educational records as
records, files, documents, and other materials which (i) contain
information directly related to a student; and (ii) are maintained
by an educational agency or institution or by a person acting for
such agency or institution. FERPA states that in order to
receive federal funding, an educational agency must grant parents
the right to inspect and review the education records of their
children. In addition, an educational agency may not disseminate
educational records to third parties without the prior consent of
the student's parents.
The records in question can likely be classified as both
scholastic and personnel records. Subsection A of § 2.1-342.01
states that records set forth in that provision are excluded
from the provisions of this chapter but may be disclosed by the
custodian at his discretion, except where such disclosure is
prohibited by law. The personnel exemption found at subdivision
A. 4. of § 2.1-342.01 allows, but does not require, a public
body to withhold such records from the public. There is no other
law within the Code of Virginia that prohibits the release of
personnel records. However, both federal and state law require that
a student's records be made available to the student's parents.
Therefore, the educational agency could not lawfully exercise the
personnel exemption at the expense of denying a parent access to
those same records if the records directly relate to the
student.
In conclusion, FOIA and FERPA both require that records directly
relating to a student be released to the parents, which would
include records of investigations stemming from an alleged assault
on your son. The portion of the records that would be considered a
part of your son's scholastic record would detail the incident
reported by your son, and any investigation into this matter.
However, due to the nature of the records, it is likely that your
son's scholastic records are intertwined with information properly
subject to other FOIA exemptions. This other information, such as
identifiable information relating to other students, personnel
records, or records subject to the attorney-client privilege may be
redacted by the school in response to your request. For example,
the portions of the investigation records relating to a decision as
to whether to take disciplinary action against the teacher in
question would be classified as personnel records, not scholastic
records, and may be properly withheld by the school. The identity
of any other student questioned during the investigation must be
redacted unless the school obtains the consent of the other
students' parents, pursuant to federal and state law, because this
information would be considered a part of that student's scholastic
records.3 Finally, correspondence in
relation to the investigation seeking advice from the school's
attorney may be withheld. Therefore, while you are entitled to
receive the portions of the records directly relating to your son,
other information falling under other FOIA exemptions may be
redacted by the school in its discretion.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Virginia Freedom of Information Advisory
Council AO-7 (2001).
2. 20 U.S.C.A. § 1232g (1998).
3. See 20 U.S.C.A. § 1232g (1998). See
also Va. Code Ann. § 22.1-287 (Michie 2000).
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