VIRGINIA FREEDOM OF INFORMATION ACT. DISCLOSURE OF OFFICIAL RECORDS. HANDWRITTEN PERSONAL NOTES OF PRINCIPAL CONSTITUTE "OFFICIAL RECORDS" AS DEFINED IN ACT.

November 15, 1983

The Honorable Adelard L. Brault,
Member, Senate of Virginia

83-84 437A

In your letter of November 1, 1983, you request my opinion on the applicability of the Virginia Freedom of Information Act, § 2.1-340 through § 2.1-346.1 of the Code of Virginia (the "Act"), to two types of documents consisting of a school principal's handwritten working notes and an anonymous complaint letter from a parent.

Section 2.1-342(a) provides:

"Except 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."

I first consider the application of the foregoing quoted provision to the handwritten notes. The notes were prepared by the principal in connection with her personal observations of employees using the storage room next to her office from which school equipment had been disappearing. The principal categorizes the notes as "memory joggers" to be used in the event a pattern of conduct should develop which might provide her with sufficient information to call in the police authorities to commence an investigation. The principal states that she does not intend to use the notes as the basis of disciplinary action. One of the employees has requested access to all documents that in any way relate to him.

To be within the purview of the Act, the handwritten notes must fall within the definition of "official records" which includes:

"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(b).

The notes in question were recorded by the principal because she was diligently discharging her duties regarding administration of the school. Thus, they were clearly recorded in the transaction of public business. While the notes may be cryptic and serve as "memory joggers," the principal did deem it important to keep them. The notes became a record and, in my opinion, fall within the definition of "official records." See 1975-1976 Va. AG 412 (holding that "notes" made by an official of a State agency as a part of his review of a federal report were records subject to disclosure). Perhaps the notes may be regarded as personnel records which are generally exempt from disclosure under §2.1-342(a)(3) but even there, records must be disclosed to the person who is the subject thereof upon receipt of proper request.

I next turn to the anonymous letter received by a school administrator. The unsigned letter alleges that students have observed a school teacher smoking marijuana between classes. After the administrator began to monitor the activities of the teacher more closely, the teacher filed a request to see all documents that in any way related to him.

A letter addressed to the school administrator and retained by her, even though unsigned, becomes an official record received by the agency within the definition of "official records," which in § 2.1-341(b) specifically refers to letters among other items.

Official records must be disclosed unless (1) otherwise specifically provided by law (§2.1-342(a)) or (2) exempted from disclosure pursuant to the provisions of the Act itself. See § 2.1-342(b). I am aware of no other law which would exempt such a letter from disclosure. Paragraph (b) of § 2.1-342 enumerates those records which are exempt from mandatory disclosure under the Act. There is an exemption provided therein for personnel records. See § 2.1-342(b)(3). That exemption, however, expressly provides that "such access shall not be denied to the person who is the subject thereof. . . ."

Arguably, the disclosure of the anonymous letter to the subject of that letter, like the disclosure of the notes, will serve no beneficial purpose; indeed, it could result in greater harm than good. Nevertheless, the Act is clear in this regard. Although not subject to mandatory disclosure to the public by virtue of the exemption in § 2.1-342(b)(3), the personnel record of the teacher is available to the teacher himself. See 1974-1975 Va. AG 585. Accordingly, I am of the opinion that the school administrator must comply with the teacher's request to see the documents that relate to him, including the anonymous letter.