FOI Advisory Council Opinion AO-04-19

AO-04-19

April 4, 2019

Tricia Dunlap
Dunlap Law PLC
Henrico, 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 messages dated September 4, 2018 and our telephone conversation on February 19, 2019.

Dear Ms. Dunlap:

You have asked whether the Virginia Board of Pharmacy (the Board) may withhold records containing the names of certain license applicants pursuant to Virginia Code § 54.1-108. As background, you provided a copy of your request to the Board, the relevant part of which requested the following records pursuant to § 54.1-108 and the Virginia Freedom of Information Act (FOIA): 

Any and all lists, schedules, rosters, spreadsheets, or records (collectively, the 'Lists') that set forth individuals or entities who submitted applications in response to RFA No. PHR-2018-01. Please note that while Virginia Code section 54.1-108 exempts from disclosure the actual applications and Board scoring records, the exemption is narrowly drawn and does not protect records such as the Lists or other similar summaries or annotated summaries related to applications or scoring records. I am requesting records other than applications or scoring records and these records are subject to disclosure under [FOIA]. 

[Emphasis in original.] You stated that the Board denied your request in part antd stated that the Board "historically interpreted section 54.1-108 to protect the confidentiality of an applicant's name." You included several email messages that were provided to you, all of which appear to be discussing the application review process and materials received from the applicants, from which applicant names appear to have been redacted. 

Applicable Law and Analysis - FOIA

The policy of FOIA stated in subsection B of § 2.2-3700 is that "[a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked." Subsection A of § 2.2-3704 provides that all public records shall be open to the citizens of the Commonwealth and certain media representatives "[e]xcept as otherwise specifically provided by law." Section 54.1-108 provides in full as follows:

Official records of the Department of Professional and Occupational Regulation or the Department of Health Professions or any board named in this title shall be subject to the disclosure provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except for the following:

1. Examination questions, papers, booklets, and answer sheets, which may be disclosed at the discretion of the board administering or causing to be administered such examinations.

2. Applications for admission to examinations or for licensure, certification, registration, or permitting and the scoring records maintained by any board or by the Departments on individuals or applicants. However, this material may be made available during normal working hours for copying by the subject individual or applicant at his expense at the office of the Department or board that possesses the material.

3. Records of active investigations being conducted by the Departments or any board.

There is no question that the Board in this instance is a "public body" subject to FOIA as defined in § 2.2-3701, and it is a board named in Title 54.1 to which § 54.1-108 applies. Research did not reveal any prior court decisions or opinions of the Attorney General that address the question presented here. The only published opinions interpreting § 54.1-108 appear to be prior advisory opinions from this office.¹ Of these prior opinions, Freedom of Information Advisory Opinion 07 (2003) is the most similar to the question presented as that opinion addressed access to a list of the names of attorneys licensed to practice law by the Virginia State Bar (VSB). Within that context, this office opined that, "[i]n order to withhold a list of the names of people admitted to practice law in the Commonwealth, a statute would need to specifically exempt such a record ... if a statute does not specifically exempt a record from disclosure, it must be made available for public inspection and copying under FOIA." That opinion concluded that "the VSB must provide a list of the names of attorneys licensed to practice law in the Commonwealth upon request, because there is no specific statutory exemption that would allow such a record to be withheld." That opinion also examined the public policy reasons for requiring the names of licensees to be made public:

Public policy also supports the position that a list of licensed attorneys is a matter of public record. Section 54.1-100 states that every person has the right to engage in any lawful profession, trade or occupation, and that the Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when it is clearly found that such an abridgment is necessary for the preservation of the health, safety and welfare of the public. By including the practice of law as a regulated profession, the General Assembly made the decision that it is in the public's best interest to require licensure and regulation of attorneys in the Commonwealth. To conclude that a list of attorneys licensed to practice law is not a matter of public record runs contrary to the public policy of licensing attorneys in the first place. The public would not be well served if it could not access a list of those the Commonwealth has deemed to be in good standing to practice law, because the purpose of the licensing requirements is to protect the public health, safety and welfare.

Applying the same analysis to your inquiry would lead to the conclusion that the Board would have to provide a list of the names of licensees, just as the VSB had to provide the name of licensed attorneys. However, there is a distinction to be made in that the prior opinion dealt with the names of licensees rather than applicants for licensure. Section 54.1-108 addresses and protects applications for licensure, but it does not address lists of licensees. Therefore, the prior opinion is not dispositive of the question you present regarding the redaction of names of applicants for licensure.

In your inquiry you noted that FOIA's statutory policy expressed at subsection B of § 2.2-3700 directs that the provisions of FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government" and that "[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." You also noted several exemptions within FOIA where individuals' identities are specifically and expressly protected,² and asserted that "similar statutory language protecting identities or identifying information of applicants for Board license does not exist." You further assert that while § 54.1-108 protects "applications" and "scoring records," it does not protect identities or "information contained in applications" or other identifying information. Therefore, you conclude that such identifying information of applicants for licensure is not exempt when it is contained in records that are not protected from disclosure by FOIA or other Code provisions. 

While you have accurately stated the policy of FOIA, I would note first that § 54.1-108 is in a separate title and chapter of the Code, and second, that even applying a narrow construction rule to § 54.1-108 the answer is not plain because § 54.1-108 does not provide a statutory definition for the terms "applications for admission" or "scoring records." The Supreme Court of Virginia recently set out the following principles of statutory construction:

When construing a statute, our primary objective, as always, is to ascertain and give effect to legislative intent from the words of the statute. In determining that intent, we are to give those words their ordinary meaning, unless it is apparent that the legislative intent is otherwise, and we presume that the General Assembly chose, with care, the words that appear in a statute. Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction. We also presume that, in choosing the words of the statute, the General Assembly acted with full knowledge of the law in the area in which it dealt....we will not apply an unreasonably restrictive interpretation of the statute that would subvert the legislative intent expressed therein.³

Turning to the ordinary meaning of the terms in question, relevant dictionary definitions are set out below:

"Application
"6. a. A request, as for assistance, employment, or admission to a school. b. The form or document upon which such a request is made."⁴

"Score
"2. A record, usually numerical, of a competitive event: keeping score. 3. a. The total number of points made by each competitor or side in a contest, either final or at a given stage. b. The number of points attributed to a competitor or team. 4. A result, usually expressed numerically, of a test or examination."⁵

"Record
"a. An account, as of information or facts, set down esp. in writing as a means of preserving knowledge. b. Something on which such an account is made."

"Records
"n. in business, particularly corporations, all the written business documents, especially about financial dealings. Thus, shareholders and partners are entitled to access to the "records" of the business."⁶

Looking at the redacted records you included with your inquiry, they all appear to be email messages sent among Board staff members concerning the process of evaluating and scoring the applications that were received, including information about the amount of materials received from the applicants and given to the evaluators, the process how the evaluators are to score each application, the division of the applications among different health service areas, scheduling the evaluations, etc. It appears that the only information redacted was the names of the individual applicants. Given the above definitions and a narrow construction, one might argue that "applications" and "scoring records" can only mean the actual application forms and scoring sheets used. However, as noted, while the narrow construction rule clearly applies within FOIA, § 54.1-108 is a specific provision of law outside of FOIA. Allowing for a broader interpretation, one could argue that the terms "applications" and "scoring records" would also include the email messages in question as they clearly pertained to the application materials and scoring process used to evaluate the individual applicants. Reading the provisions of subdivisions 1 and 3 of § 54.1-108, in conjunction with subdivision 2, the General Assembly has expressly protected "examination questions, papers, booklets, and answer sheets" and "records of active investigations" along with "applications" and "scoring records." The legislative intent appears to be to provide confidentiality to the application and investigation process. You noted that the Board "historically interpreted section 54.1-108 to protect the confidentiality of an applicant's name," which would appear to coincide with this apparent legislative intent. However, as there is no court precedent or opinion of the Attorney General on point to provide specific guidance on the interpretation of these terms, and as the statutory authority of this office is limited to FOIA matters, it is not clear how a court would rule if this question was presented as an issue in controversy.⁷

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

Sincerely,

Ashely Binns
Staff Attorney

Alan Gernhardt 
Executive Director

¹See Freedom of Information Advisory Opinions 07 (2018), 26 (2004), 11 (2004), and 07 (2003). Similarly, note that there appear to be no opinions interpreting former Code § 54-1.41, which was recodified as § 54.1-108 (see 1988 Acts of Assembly, c. 765; Report of the Virginia Code Commission on the Revision of Title 54 of the Code of Virginia, House Doc. No. 23 (1988)).
²Specifically, subdivisions 1 and 6 of § 2.2-3705.2 and subdivisions 8 and 11 of § 2.2-3705.3. 
³Turner v. Commonwealth, 295 Va. 104, 108-109, 809 S.E.2d 679, 681 (2018) (internal quotations and citations omitted).
⁴The American Heritage Dictionary 121 (2d College ed., 1982).
⁵Id. at 1100.
⁶Hill, Gerald and Kathleen Hill. The People's Law Dictionary. Fine Communications, n.d. (last accessed March 8, 2019 at https://dictionary.law.com/Default.aspx?selected=1752).
⁷I would note that based on conversations with you and representatives of the Board on February 19, 2019, it appears that the applicants' names have been made public.