June 6, 2001

Mr. Kevin M. Cusce
Yorktown, 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 letters of April 2 and April 14, 2001.

Dear Mr. Cusce:

You have asked whether you may obtain copies of the records maintained in your case file by the Board of Social Work ("the Board") under the Virginia Freedom of Information Act (FOIA). You indicate in your correspondence that Board has placed you under probationary supervision, but you do indicate any background details that led to your probationary status. You have requested records pertaining to your case from both the Board and the Department of Health Regulatory Boards, which oversees the Board, pursuant to both FOIA and the Privacy Protection Act of 1976 (PPA). Your request was denied on the grounds that § 54.1-2400.2 of the Code of Virginia requires all information obtained during an investigation or disciplinary hearing of a health regulatory board be kept confidential. You challenge the application of the exemption on the grounds that it was meant to protect the privacy of the individual named in the investigation, and thus was not meant to prohibit access to the information by the subject himself.

Subsection A of § 2.1-342 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. While FOIA sets forth a number of exemptions to this requirement at § 2.1-342.01, exemptions can also be found at other locations throughout the Code. One such example is § 54.1-2400.2, which prohibits the disclosure of [a]ny reports, information or records received and maintained by any health regulatory board in connection with possible disciplinary proceedings, including any material received or developed by a board during an investigation or proceeding. Because the documents that you request relate to an investigation by the Board of Social Work, a health regulatory board, into the status of your license and subsequent probation, these records clearly fall within the purview of the exemption. While most of the exemptions set forth in FOIA give the records custodian discretion as to whether to exercise the exemption and withhold the records, this provision sets forth a clear prohibition against disclosure. Subsection H of § 54.1-2400.2 makes it a Class 1 misdemeanor for any person to disclose the investigative and disciplinary records.

You argue that despite the clear prohibition against disclosure, the policy of the exemption is to protect the privacy of the individual subject to the investigation, and thus should not be interpreted as to allow a board to withhold records from the subject of those records. Therefore, you argue, you are entitled to receive a copy of the records concerning your license, and the exemption should be used only to prohibit the dissemination of the records to a third party. The rules of statutory construction do not support your argument, as will be discussed below.

Generally, a "data subject" does have a right to access information gathered about him by an "agency," as these terms are defined at § 2.1-379 of PPA. Subdivision A. 3. of § 2.1-382 of PPA gives a data subject the right to inspect all personal information maintained by a given agency, and be informed of the source of the information and the names of recipients of this information. However, subsection 1 of § 2.1-384 declares that PPA is not applicable to information [m]aintained by agencies concerning persons to be licensed by law in this Commonwealth to engage in the practice of any professional occupation. Because you are required to be licensed by the Board to engage in the practice of social work, the information gathered about you by the Board is not be subject to the requirements of PPA.

In addition, subsection A of § 54.1-2400.2 enumerates six situations under which information concerning investigations or disciplinary hearings may be disclosed. None of these six make any mention of disclosure of the records to an individual who is the subject of those records. The absence of such an exception to the list indicates a legislative intent to withhold such records from the subject, since disclosure under other circumstances is affirmatively permitted.

Finally, in certain instances the statutes allowing records to be witheld pursuant to FOIA also specifically require that these same records be made available to the individual who is the subject of those records. For example, subsection A. 4. of § 2.1-342.01 exempts [p]ersonnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Similar provisions can be found within other FOIA exemptions at § 2.1-342.01, such as the scholastic records exemption at subdivision A.3. and the medical records exemption at subdivision A. 5. Neither the exemption within FOIA at subdivision A. 13. of § 2.1-342.01 for records of active investigations of a health regulatory board, nor the prohibition against disclosure of records relating to investigations or disciplinary proceedings at § 54.1-2400.2, includes such a provision.

In conclusion, the General Assembly has clearly shown its intent that the subject of an investigation by a health regulatory board does not have a right of access to records of such investigations. The General Assembly has exempted agencies that are required by law to license individuals for the practice of a professional occupation from the scope of PPA, and has failed to include an affirmative right of the subject to access his own investigative records in the exemptions from FOIA. Therefore, the records relating to the investigation and probationary status of your license to practice social work may be properly withheld by the Board and the Department of Health Professions pursuant to § 54.1-2400.2.

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

Sincerely,

Maria J.K. Everett
Executive Director