SCHOOLS. SCHOOL BOARDS. RELEASE BY SCHOOL BOARD OF FACT-FINDER'S
AWARD IN TEACHER GRIEVANCE MAY VIOLATE TEACHER'S RIGHT TO PRIVATE
HEARING; VIOLATES NEITHER VIRGINIA FREEDOM OF INFORMATION ACT NOR
PRIVACY PROTECTION ACT OF 1976.
September 6, 1983
The Honorable Warren G. Stambaugh,
Member, House of Delegates
You ask several questions involving the following fact situation,
which I quote from your letter.
"During the early part of this year the Arlington School
Board upheld a fact-finder's decision sustaining the grievances of
two Arlington teachers. The following morning a reporter requested
and was given, by the clerk of the School Board, a copy of the
fact-finder's award. The two teachers subsequently filed
grievances concerning the release of this document and those
grievances were denied."
You have confirmed that the fact-finder's award contained all of
the facts and details upon which the award was based. I will answer
your questions in the order raised.
"1. Are all or any of the written documents which are a
part of the grievance procedure outlined in sections 22.1-306
through 22.1-314 of the Code of Virginia personnel records and/or
personal information as defined in the Virginia Freedom of
Information Act (§2.1-340 et seq.) and the Privacy Protection
Act of 1976 (§ 2.1-377 et seq.)?"
The Virginia Freedom of Information Act does not define the term
"personnel records." Normally, personnel records include those
records maintained by a public agency which identify an employee, his
rank or classification, rate of pay, performance and/or job history.
The Privacy Protection Act of 1976 defines "personal information" in
§ 2.1-379(2) as follows:
"all information that describes, locates or indexes
anything about an individual including his real or personal
property holdings derived from tax returns, and his education,
financial transactions, medical history, ancestry, religion,
political ideology, criminal or employment record, or that affords
a basis for inferring personal characteristics, such as finger and
voice prints, photographs, or things done by or to such
individual. . . ."
Obviously, not all documents introduced at a grievance hearing
would fall into these definitions. Necessarily, your question can be
answered only by examining the specific document. Nonetheless, simply
because an exhibit is introduced into the hearing does not transform
it into a "personnel record" or "personal information."
Your second question reads as follows:
"2. Does either the Virginia Freedom of Information Act
or the Privacy Protection Act of 1976, or both, prohibit the
disclosure of grievance procedure documents which are either
personnel records and/or personal information without the
permission of the grievant?"
Your question is answered in the negative. Although personnel
records are expressly exempt from mandatory public disclosure under
the Virginia Freedom of Information Act (§2.1-342(b)(3)),
disclosure is permitted if the custodian of the records chooses to
disclose them. Moreover, the Privacy Protection Act of 1976 does not
prohibit the dissemination of records containing personal information
where dissemination is otherwise permitted or required by law. See
1977-1978 Va. AG 481. See, also, Hinderliter v. Humphries, 224
Va. 439, 297 S.E.2d 684(1982); 1980-1981 Va. AG 299; 1978-1979 Va. AG
Your third question reads as follows:
"3. If neither the Virginia Freedom of Information Act
nor the Privacy Protection Act of 1976 prohibits the disclosure of
grievance procedure documents, is such disclosure prohibited
either by the provisions of § 22.1-311 requiring that
grievance hearings before the school board be private unless the
teacher requests a public hearing, or by the provisions of §
22.1-312(C) requiring that a hearing of a factfinding panel be
private if the teacher so requests?"
As you have noted, § 22.1-311 explicitly grants a teacher the
specific right to have his or her grievance heard by the school board
in private.1 Further, §
22.1-312(C) grants the teacher a private hearing before the
fact-finding panel at the teacher's request.2
Finally, in cases in which the school board holds a hearing
subsequent to the fact-finding panel, the privacy interests are
likewise guaranteed. Section 2.1-313(D).3
It is an accepted principle of statutory construction that
statutes be read in pari materia in order to give full force
and effect to each provision. A statute is construed to promote the
legislative purpose. See 1980-1981 Va. AG 265; Dowdy v.
Franklin, 203 Va. 7, 121 S.E.2d 817 (1961). The General Assembly
manifestly has established the teacher's right to a private hearing
in a grievance situation, and this express right is not overridden by
either the Virginia Freedom of Information Act or the Privacy
Protection Act of 1976.
Passage of § 22.1-313(E), which became effective on July 1,
1983, moreover supports this conclusion. Section 22.1-313(E) provides
that certain persons who participate in the earlier grievance
hearings may not be present during the school board's deliberations
on the grievance. However, "immediately after a decision has been
made and publicly announced, as in favor of or not in favor of the
grievant" those persons may join the school board in executive
session to "assist in the writing of the decision." In view of the
express right to a private grievance hearing and the foregoing
statutory language clearly limiting what may be disclosed publicly, I
am of the view that, absent clear legislative direction to the
contrary or consent of the parties, a school board may not publicly
disclose its findings of fact with respect to a teacher grievance to
the extent such facts were determined on evidence submitted during a
privately held grievance hearing. The school board may, however,
announce whether its decision was "in favor of or not in favor of"
the grievant. As to the documents or exhibits which make up the
record of the hearing, every effort should be made to maintain the
spirit of privacy intended by the General Assembly in such matters;
however, if the exhibits have some existence independent of the
grievance hearing they may be disclosed, in the discretion of the
board, unless otherwise prohibited by law.4
Your next question reads as follows:
"4. If disclosure of grievance documents is not
prohibited by any of the previously cited statutes, may a school
board disclose grievance documents in a selective manner by:
A. disclosing documents only in certain cases?
B. disclosing only some documents in a particular case?
C. disclosing some documents in one case and different
documents in another case?
D. disclosing the same documents in every case in which it
discloses documents, but not disclosing documents in every
E. disclosing the same documents and disclosing them in every
The answer to question 3 is responsive to this inquiry. Such a
determination must be made by examining the specific
In your last question you ask:
"5. If disclosure of grievance documents is not
prohibited, what rights, if any, does the grievant have under the
Privacy Protection Act of 1976?"
Generally, the Privacy Protection Act grants a data subject the
right to examine his file and make corrections or additions thereto.
See, e.g., § 2.1-382. In addition, any aggrieved person may
institute a proceeding for injunction or mandamus "against any person
or agency which has engaged, is engaged, or is about to engage in any
acts or practices in violation" of the provisions of the Privacy
Protection Act. See § 2.1-386.
1 Section 22.1-311 provides: "The hearing before the
school board . . . shall be private unless the teacher requests a
public one. . . ."
2 Section 22.1-312(C) provides: "The panel shall
determine the propriety of attendance at the hearing of persons not
having a direct interest in the hearing, provided that, at the
request of the teacher, the hearing shall be private."
3 Section 22.1-313(D) provides: "In any case in
which a further hearing by a school board is held after a hearing
before a fact-finding panel . . . [s]uch hearing shall be
conducted as a hearing by the school board as provided in section
4 I assume that the teacher has not waived any claim
to privacy by making a partial public disclosure of certain
information favorable to the teacher. Such a disclosure might be
regarded as a waiver by the teacher of any privacy provided by these
5 Of course, where disclosure is contemplated by law
as, for example, when the board must transmit the record to the
circuit court for a determination of grievability under §
22.1-314, such disclosure may be properly made.