AO-02-26
February 23, 2026
Mr. Mital Gandhi
Loudoun, Virginia
Request received via email
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 email of September 3, 2024.
Background
You have asked for the opinion of this office regarding records requests you made beginning on August 8, 2024.
As background, you provided several pieces of correspondence sent between you and the Freedom of Information Act (FOIA) officer for Loudoun County Public Schools (LCPS). The correspondence included two records requests, and a contract governing certain materials held by LCPS in relation to its virtual learning arm, Virtual Loudoun. Initially you made a request that stated the following:
Pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), I am requesting access to the following materials: All curriculum materials for all classes available to Virtual Loudoun students. This includes all instructional content, such as videos, lesson plans, and other educational resources, excluding tests and examinations. For ease of access, I would appreciate receiving a link to this material for review. If any portion of this request is exempt from disclosure, please provide a detailed explanation of the exemption being applied. Additionally, I request that the materials be provided in an electronic format if possible. If there are any fees associated with fulfilling this request, please inform me in advance.
LCPS responded to your initial request by refusing to release any responsive records, which amounted to 125,000 pages. In its denial email, LCPS cited several provisions of law: the United States Copyright Act of 1976, 17 U.S.C. § 106 and Va. Code §§ 2.2-3700(B), 2.2-3705.1(4), and 2.2-3705.4(A)(1), stating that the records were copyright protected and could not be released in part because the copyright holder had not consented to their release. After the first denial email, you narrowed your request; seeking the curriculum and instructional materials for one class, Algebra 2/Trigonometry. You stated in follow-up that your records request was necessary for inter alia, “….criticism, comment, teaching, and potentially news reporting.” In response, LCPS stated that the instructional content you sought was not prepared or developed by LCPS, instead, the content you requested was licensed from a private third party who, LCPS stated, owned the copyrighted material. Finally, LCPS asserted that any lesson plans prepared for Virtual Loudoun that you requested initially were being withheld because the lesson plans were in the sole possession of the teacher and were not accessible or revealed to any other person except a substitute teacher and exempt pursuant to § 2.2-3705.4(A)(1). After these denials, you submitted an additional, separate FOIA request that disclosed a contract between LCPS and the Hampton Roads Educational Telecommunications Association, Inc. (HRETA), one of the third-party vendors alluded to in your initial email exchange.
The contract you received from your FOIA request was titled, “Course Maintenance Subscription.” The contract outlined the purpose of the Course Maintenance Subscription and the courses covered by the agreement. Additionally, the contract included a provision stating the following:
“A. RIGHTS TO USE MATERIALS. LCPS is hereby granted a royalty-free, non-exclusive, and irrevocable license in perpetuity to reproduce, publish, or otherwise use the Intellectual Property produced by HRETA, Inc. in performance of this Agreement and to use such Intellectual Property for noncommercial purposes and to authorize others to do the same.”
Policy Statement of FOIA
Before proceeding with any analysis, we will dispense with several threshold matters. First, this office previously opined that local school boards are public bodies subject to FOIA.1 Next, whenever a request for records is denied, subdivision B 1 of § 2.2-3704 requires that the subject of the withheld records and the specific Code section that authorizes that withholding must be identified in writing.2 Furthermore, in order to answer the questions raised by your request it is helpful to set forth the relevant policy of FOIA. The policy statement of FOIA at subsection B of § 2.2-3700 of the Code of Virginia, provides that:
“By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter 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. Any 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. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.”
Analysis
Virginia’s FOIA policy, as set forth above establishes a presumption of openness for all public records unless specifically exempted.3 With this guiding principle in mind, our analysis will evaluate each of the provisions of law invoked by LCPS: first examining the intersection between federal copyright law and FOIA disclosure requirements, including select contractual provisions between LCPS and HRETA; followed by the test and examination exemption under § 2.2-3705.1(4); and finally considering whether lesson plans qualify as exempt “scholastic records” or fall under the narrowly defined “sole possession” standard in § 2.2-3705.4(A)(1).
Doctrine of Fair Use
It is likely that the outcome of your request turns on copyright protections afforded to curriculum materials that LCPS licenses from a third-party vendor. In denying your records request, LCPS cited the United States Copyright Act of 1976, 17 U.S.C. § 106, which grants copyright holders exclusive rights to reproduce, distribute, and display their works. LCPS also referenced an Opinion by the Virginia Attorney General, 1998 Op. Va. Att’y Gen. 5, which addressed the interplay between FOIA and copyright protections. It is important to note at the outset that FOIA does not contain a specific exemption for copyrighted materials.4 The statutory authority of the FOIA Advisory Council under § 30-179 is specifically limited to FOIA matters.5 Because of that statutory limitation, we only consider copyright issues as they interact with FOIA and do not offer any specific guidance on copyright law itself. Following that understanding, based on the facts you presented, we can highlight some considerations regarding the interaction of copyright protections and FOIA in relation to your records request.
Turning first to considerations regarding federal copyright law, we note that certain provisions of federal copyright law may dictate withholding what are otherwise public records. Specifically, in the context of your request, 17 U.S.C. §§ 106 and 107 may affect whether or not the records are released, but it is ultimately a question of law, that if challenged, would be determined by a court.
17 U.S.C. § 107 outlines the doctrine of fair use — a codification of long established legal precedent — that allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.6 Your narrowed request for Algebra 2/Trigonometry records specifically stated that you sought the materials for “criticism, comment, teaching, and potentially news reporting” purposes that would appear to align with the statutory fair use examples. Critically, a full fair use analysis involves a judicial determination that weighs multiple factors and is fact-specific.7 Again, such a determination is outside the scope of the Council’s statutory authority.
Moreover, as recognized by the Attorney General in the 1998 opinion, federal copyright law may limit a public body’s ability to reproduce and distribute copyrighted works even when those works constitute public records under FOIA.8 The 1998 opinion concerned copyrighted material submitted to the Virginia state song subcommittee tasked with selecting a new state song. In conducting his analysis, the Attorney General explained that copyrighted material could be released if one of two conditions were met: (i) the copyright owner gave express or implied consent or (ii) the dissemination of the work constituted fair use.9In addition to delineating the circumstances under which a copyrighted work could be released, the Attorney General’s opinion states the following:
The Subcommittee may choose not to contact the copyright owner if it determines that certain requests for materials will be for purposes that constitute a “fair use.” Such a determination will, however, depend on the facts and circumstances of the individual requests. The Freedom of Information Act does not require reproduction and dissemination under circumstances that would violate the Copyright Act.10
Returning to the denial emails, LCPS acknowledged the principle of express consent by asking the copyright holder for permission to release the requested records. LCPS went on to indicate that they did not receive permission to disseminate the records in question. While LCPS’s conduct exemplifies a consent-based approach to copyrighted work, it does not appear from the facts that you presented that LCPS considered the doctrine of fair use.
Lastly, subsequent to your denial, you submitted another FOIA request that revealed a contract between LCPS and HRETA that appears potentially dispositive. The Course Maintenance Subscription contract contains the following language:
“A. RIGHTS TO USE MATERIALS. LCPS is hereby granted a royalty-free, non-exclusive, and irrevocable license in perpetuity to reproduce, publish, or otherwise use the Intellectual Property produced by HRETA, Inc. in performance of this Agreement and to use such Intellectual Property for noncommercial purposes and to authorize others to do the same.”
This contractual provision explicitly grants LCPS the right not only to “reproduce” and “publish” the materials but also to “authorize others” to use such intellectual property for noncommercial purposes. The contractual language on its face suggests that LCPS may have broader authority to disclose these materials than its initial response indicated. If that is the case, then the records could be shared. However, our position is merely speculative as without more context, key provisions of this contract remain unclear, and could be for a court to decide.
Narrowed Request – Tests or Examinations
Your initial request specifically excluded tests or examinations. However, LCPS cited subdivision 4 of § 2.2-3705.1 pertaining to tests or examinations, defined as:
“Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student’s performance, (ii) any employee or employment seeker’s qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by a public body.
As used in this subdivision, “test or examination” shall include (a) any scoring key for any such test or examination and (b) any other document that would jeopardize the security of the test or examination. Nothing contained in this subdivision shall prohibit the release of test scores or results as provided by law, or limit access to individual records as provided by law. However, the subject of such employment tests shall be entitled to review and inspect all records relative to his performance on such employment tests.”11
In so much as the responsive records — either the initial 125,000 pages or the narrowed Algebra 2/Trigonometry request — would include scoring keys or jeopardize the security of a test or examination, those records may be withheld. This is likely a question of fact that cannot be determined with the information provided.
Lesson Plans: § 2.2-3705.4(A)(1).
In your email exchange, LCPS indicated that the lesson plan records you requested were being withheld under subdivision A 1 of § 2.2-3705.4 of the Code of Virginia. However, LCPS also asserted that Virtual Loudoun teachers do not prepare lesson plans. If lesson plans truly do not exist, the proper response from LCPS is dictated by subdivision B 3 of § 2.2-3704.12 Therefore, LCPS’s response makes it difficult to determine if the lesson plans exist or not.
Turning now to the substantive exemption claimed, subdivision A 1 of § 2.2-3705.4 addresses “scholastic records,” which are further defined in § 2.2-3701 as 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.”13
This office has previously examined the scholastic records exemption, finding that the touchstone is whether the record is directly related to a student, not merely educational in nature.14 As stated above, subdivision A 1 of § 2.2-3705.4 concerns scholastic records. Within subdivision A 1 there is a clause that states:
“However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.”15
Read in context, “no student shall” limits only student access; it does not create a categorical withholding basis for other requesters. Assuming, arguendo that “no student shall” encompasses other categories of requestors, not just students, a narrow construction of the noun phrase “sole possession” found in clause (ii) does not justify withholding records. In this context, “sole possession” is a phrase derived from the federal Family Education Rights and Privacy Act (FERPA).16
While FOIA does not mirror FERPA word-for-word, federal regulations and prior opinions of this office support a narrow reading/construction of the sole possession standard.17 This office has previously examined the sole possession standard in FOIA, finding that it must be read in concert with FERPA.18 Federal regulations at 34 C.F.R. § 99.3 define the scope of this exception, limiting it to records that function as “memory aids” and are not shared for routine purposes.19
In 2004, this office examined FERPA and FOIA in relation to “sole possession” records. Freedom of Information Advisory Opinion 13 (2004) concerned a requester seeking copies of audition and evaluation forms related to his daughter’s theater audition at a public university that were in the possession of an audition committee.20 Consistent with federal regulations, we distinguished “sole possession” records from scholastic or educational records.21 After analyzing the “sole possession exemption,” we concluded that:
1. Documents kept by the audition committee solely as personal memory aids were likely excluded from disclosure under FOIA and FERPA;
2. Notes and comments on standardized audition scorecards or evaluation forms were not within the sole possession exception in FOIA or FERPA; and
3. Written procedures and guidelines used by the audition panel were subject to disclosure under FOIA and FERPA because they did not contain information concerning identifiable students.22
Hence, sole possession applies to records kept solely as the maker’s memory aid and not shared or accessible to anyone else except a substitute.23 Once a document is shared for routine instructional or administrative purposes, or used beyond the scope of a personal memory aid, it moves outside the sole-possession standard.24
Applying these rules to the instant case, while LCPS maintains that Virtual Loudoun teachers do not prepare lesson plans, to the extent lesson plans do exist, they are not “scholastic records” under § 2.2-3701 absent student-specific annotations. Lesson plans are not exempt as scholastic records, and the “sole possession” noun phrase does not justify withholding them from non-student requesters. If a lesson plan contains student names or other identifiable student information, those portions should be redacted and the remainder produced to the requester. Hence, if the lesson plans created by Virtual Loudoun teachers are used solely as memory aids then they are properly withheld, but if used in some other capacity, the lesson plans are considered open.
Thank you,
Matteo Murrelle
Senior Attorney
Alan Gernhardt, Esq.
Executive Director
1Va. Code Ann. § 2.2-3701; see also Freedom of Information Advisory Opinion 03 (2019).
2Va. Code Ann. § 2.2-3704(B); e.g., Freedom of Information Advisory Opinion 02 (2009).
3Va. Code Ann. § 2.2-3704(B).
4Freedom of Information Advisory Opinion 20 (2000).
5Va. Code Ann. § 30-179(1).
617 U.S.C. §107; See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§ 101, 102.4 (3d ed. 2021).
7See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§ 100, 102.4 (3d ed. 2021).
8See 1998 Op. Va. Att’y Gen. 5.
9Id.
10Id.
11Va. Code Ann. § 2.2-3705.1(4)
12Va. Code Ann. §2.2-3704(B)(3)
13Va. Code Ann. § 2.2-3701
14See Freedom of Information Advisory Opinion 13 (2004).
15Va. Code Ann. § 2.2-3705.4(A)(1).
1620 U.S.C. § 1232(g).
1734 CFR §99.3 “Education records”; see Freedom of Information Advisory Opinion 13 (2004).
18See Freedom of Information Advisory Opinion 13 (2004).
1934 CFR 99.3 “Education records”; “The term does not include: (1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.”
20Freedom of Information Advisory Opinion 13 (2004).
21Id.
22See id; See also 34 CFR § 99.3.
23See id; See also 34 CFR § 99.3.
24See id.