FOI Advisory Council Opinion AO-03-19

AO-03-19

April 3, 2019

John F. Cafferky
Fairfax, 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 electronic mail message dated February 25, 2019.

Dear Mr. Cafferky:

You have asked whether individual educational test scores that are part of a student's scholastic record would still be exempt from disclosure under subdivision A 1 of § 2.2-3705.4 of the Code of Virginia,¹ even if the student's name and other personal information are redacted.

Factual Background

You stated that from time to time, your public school board clients receive requests, pursuant to the Virginia Freedom of Information Act (FOIA), for school records containing individual test scores for all students in a particular segment of a school or school division. The requester has asked for individual scores and not an aggregate, statistical, or combined score, and they typically direct the school board to redact individual student names and other personally identifiable information. 

Applicable Law and Analysis - FOIA

As a general matter, FOIA allows for the inspection of public records by the public, except as otherwise specifically provided by law.² Under the provisions of FOIA, "public records" is defined to include:

all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.³

"Public body," as defined, means:

any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.⁴

Local school boards fall within the definition of public body, thus any records in their possession or in the possession of their officers, employees, or agents in the transaction of public business are considered public records, and are required to "be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth," except as otherwise specifically provided by law.⁵

There is an exception in FOIA for educational records that excludes from mandatory disclosure "[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."⁶ The term "scholastic records" is defined to mean "those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution."⁷ Although scholastic records are excluded from mandatory disclosure under the provisions of FOIA, the records may be disclosed in the custodian's discretion, except where such disclosure is otherwise prohibited by law.

The test scores that are being requested are considered part of a scholastic record because the information is directly related to individual students. Therefore, the test scores, as part of a scholastic record, are excluded from mandatory disclosure under FOIA, unless the information is being requested by the student or the parent or legal guardian of the student who is the subject of such records. Based on the given facts, that does not seem to be the case. 

Based on the facts given, requesters seem to be under the impression that the test scores would no longer be exempt under FOIA if the student's name and other personally identifiable information were to be redacted. FOIA provides that "a public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record."⁸ Simply put, FOIA allows for the redaction or removal of exempt information from a record that would otherwise be nonexempt, if that information were not present. In this particular situation, the test scores that the requesters seek are a part of the students' scholastic record, which contains a collection of information about identifiable individuals. Even if student names and other personal information were to be redacted, the fact still remains that, as you have described them, these scholastic records themselves contain specific information about identifiable individuals; thus, the scholastic record and all information contained therein would still be exempt from mandatory disclosure under the provisions of FOIA.

Conclusion

Although student test scores are considered public records that are held by the local school board, which is a public body that is subject to the provisions of FOIA, the test scores fall within an exception as they are a part of a student's scholastic records that are exempt from mandatory disclosure under FOIA. Redacting or otherwise removing a student's name and other personal information does not make the scholastic record a nonexempt record that must be disclosed as the record would still contain information about specific individuals, whether identified by name or not.

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

Sincerely,

Ashely Binns
Staff Attorney

Alan Gernhardt 
Executive Director

¹All section numbers provided are from the Code of Virginia.
²See § 2.2-3704(A).
³§ 2.2-3701.
⁴§ 2.2-3701.
⁵§ 2.2-3704(A).
⁶§ 2.2-3705.4(A)(1).
⁷§ 2.2-3701.
⁸§ 2.2-3704.01.