Attorney General's Opinion 1981-82 #284

PRIVACY ACT. VIRGINIA FREEDOM OF INFORMATION ACT. PRIVACY ACT DOES NOT PROHIBIT DISSEMINATION OF INFORMATION WHERE FREEDOM OF INFORMATION ACT WOULD REQUIRE OR PERMIT DISSEMINATION OF INFORMATION IN QUESTION.

March 25, 1982

The Honorable Jack B. Carson
Director Department of Health Regulatory Boards

81-82 284

You have inquired if §2.1-384 of the Code of Virginia (1950), as amended, limits the dissemination of names and addresses of health professionals licensed by the Department of Health Regulatory Boards (the "Department") to only those persons or organizations offering informational materials relating solely to available professional educational materials or courses, or if requests for the names and addresses must be released under the Virginia Freedom of Information Act. Section 2.1-384 is a portion of the Privacy Protection Act of 1976 (the "Privacy Act"). Sections 2.1-377 through 2.1-386. The stated purpose of the Privacy Act is to ensure safeguards for personal privacy by record-keeping agencies of the Commonwealth and political subdivisions. Section 2.1-378B. The exemptions to the Privacy Act are the personal information systems specified in §2.1-384.1 The quoted portion of that section not only exempts the systems mentioned therein from the privacy provisions of the chapter but it expressly authorizes the dissemination of names and addresses of licensed persons on a limited basis. The Virginia Freedom of Information Act (the "Act") §2.1-340, et seq., requires the disclosure of public records upon a proper request, unless there is an exception or prohibition provided by law.2 There is no exception or prohibition provided by law for the information in question other than the limitation in §2.1-384. While there may have existed some question as to legislative intent prior to 1979 with respect to the unlimited disclosing of licensees' names and addresses, the 1979 enactment of §54-1.41 resolved that question. Unless expressly excepted by that section, the records of any board named in Title 54 are subject to the provisions of the Act

Accordingly, I am of the opinion that the Act would require the dissemination of the information in question, notwithstanding §2.1-384.

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Footnotes:

1 Section 2.1-384 provides in pertinent part, inter alia: "The provisions of this chapter shall not be applicable to personal information systems...

5. Maintained by agencies concerning persons required to be licensed by law in this State to engage in the practice of any professional occupation, in which case the names and addresses of persons applying for or possessing any such license may be disseminated upon written request to a person engaged in the profession or business of offering professional educational materials or courses for the sole purpose of providing such licensees or applicants for licenses with informational materials relating solely to available professional educational materials or courses, provided such disseminating agency is reasonably assured that the use of such information will be so limited..."

2 Section 2.1-342 provides in pertinent part as follows: "(a) 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.... '

3 "Official records of the Department or any board named in this title shall be subject to the disclosure provisions of the Virginia Freedom of Information Act, except for the following:

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

2. Applications for admission to examinations or for licensure and scoring records maintained by any board or the Department on individual licensees or applicants; except that such material may be made available during normal working hours for copying, at his expense, by the individual who is subject thereof at the office of the Department or the offices of any board, whichever of these may have possession of the material.

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