May 31, 2001
Mr. Gary Grant
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 e-mail of April 16, 2001, and
your phone conversation of May 16, 2001.
Dear Mr. Grant:
You have asked whether certain information concerning employees
of a public school system is open to the public under the Virginia
Freedom of Information Act (FOIA). Specifically, you inquire
whether an employee's name, employment action taken regarding that
employee, assignment and salary would be a matter of public record.
You further inquire as to whether a public body must withhold all
information properly subject to an exemption, or whether it may
release some or all of the information.
Subsection A of § 2.1-342 of the Code of Virginia declares
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. Unless a specific exemption
applies to the type of information that you have described, then
any documents containing this information would be available to the
Subdivision A. 4. of § 2.1-342.01 exempts [p]ersonnel
records containing information concerning identifiable
individuals from public disclosure. The act does not further
define the term "personnel record." However, the Attorney General
of Virginia has found that term encompasses records that identify a
particular employee and include information such as rank or
classification, job performance, job history, employee evaluations,
specifics as to the nature of employment, professional
qualifications, application information, or other records prepared
or maintained by for an agency's internal, administrative
purposes.[fn1] The Attorney General has further opined that the
exemption covers records within the Act's intended scope of
confidentiality that contain personal information concerning
individual...employees.[fn2] Note that the exemption applies to
any record that contains this type of information. Therefore, if a
given record includes any of this information within the zone of
privacy, the entire record would be subject to the exemption.
The question now turns to whether the particular types of
personnel information that you mention would fall under the
personnel records exemption. You first ask if an employee's name
would be public record. This does not seem to fall under the type
of confidential information that the exemption protects, and a list
of employees within the school system would appear to be a public
Second, you ask whether employment action taken regarding
particular employees would be subject to public disclosure. By way
of example, you note that such action might include, among others,
nomination for tenure, non-renewal due to lack of proper licensure,
early retirement, or career leave. Such information falls within
the definition of a personnel record carved out by the Attorney
General of Virginia. As such, as it pertains to identifiable
employees, any document containing such information would be
subject to the personnel records exemption and therefore not
subject to the mandatory disclosure requirements of FOIA.
Third, you ask whether the assignment of each employee, such as
the name of the school where he works and the teaching subject or
job to which he has been assigned, would be a matter of public
record. Subsection B of § 2.1-342.01 states that nothing in
FOIA should be construed to deny public access to records of the
position or job classification of any employee of a public body.
Therefore, the position held by each employee of the school system
would be subject to public access.
Next, you ask whether the salary of an employee must be
disclosed under FOIA. Subsection B of § 2.1-342.01 requires
that the official salary or rate of pay and records of allowances
or reimbursements paid to any officer, official or employee of a
public body must be made available to the public. This requirement
applies only to public employees whose annual rate of pay is
greater than $10,000. As such, the salary of any employee of the
school system who makes more than this amount would be a matter of
In light of the exemptions discussed above, you ask whether a
public body may disclose some or all of the information subject to
the exemption, or must invoke the exemption and withhold all of the
information. Subsection A of § 2.1-342.01, the section setting
forth exemptions to FOIA including the personnel records exemption,
states that [t]he following records are excluded from the
provisions of this chapter but may be disclosed by the custodian in
his discretion, except where disclosure is prohibited by law.
The Code does not prohibit the dissemination of personnel records
to third parties. As such, the custodian of the personnel records
may decide to release some or all of the information that it may
otherwise properly withhold.
In conclusion, information relating to action taken concerning
an employee is properly subject to the personnel exemption found at
subdivision A. 4. of § 2.1-342.01. However, the custodian of
records containing this information may choose to release some or
all information relating to the actions taken. Information
concerning the name, position, and salaries of employees, however,
is a matter of public record and may not be withheld.
Thank you for contacting this office. I hope that I have been of
Maria J.K. Everett
1. See 1983-84 Op. Atty. Gen. Va. 314,
1985-86 Op. Atty. Gen. Va. 333, 1991 Op. Atty. Gen. Va. 9.
2. 1991 Op. Atty. Gen. Va. 9.