FOI Advisory Council Opinion AO-13-01

February 19, 2001

Ms. Alice Jones
Dinwiddie, VA

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 e-mail of January 29, 2001.

Dear Ms. Jones:

You have asked whether the superintendent of schools may, under the Virginia Freedom of Information Act (FOIA), release information concerning whether a particular individual ever attended public schools in the county. You indicate that no county-wide database exists where you could find such a record in response to the request, but that you would have to call each of the seven schools in your county in order to determine if such a record exists. You ask whether FOIA obligates you to perform this countywide search in response to the request.

Under subsection A of § 2.1-342 of the Code of Virginia, all public records must be open for inspection unless specifically provided by law. Subdivision A. 1. of § 2.1-342.01 does exempt scholastic records concerning identifiable individuals. However, § 22.1-287 provides that directory information may be released in accordance with federal law. The federal Family Educational and Privacy Rights Act (FERPA) addresses the disclosure of scholastic or education records. Similar to the FOIA exemption, FERPA prohibits the release of educational records that contain personally identifiable information.[fn1] However, this prohibition does not apply to directory information, which includes a student's dates of attendance at a school. In order to release the directory information, the school must give public notice of the type of information that it will include in its directory and allow reasonable time for a parent, or the student if over the age of 18, to inform the school that all or some of the directory information should not be made public concerning that particular student. If this public notice is not given, then the written consent of the parent, or student if over the age of 18, must be obtained before it may be released.

The information requested in this instance would clearly be directory information. You indicate that 1968 is the year of birth of the individual about whom information was requested. FERPA was enacted in 1974 and thus would have been in effect for most, if not all, of the years which the individual may have attended public school in the county. As such, in order to release records of the individual's dates of attendance, you would have to either ensure that his parents were given notice of and did not object to the release of his dates of attendance as part of the school's directory information, or obtain the permission of the individual who is subject of the request to release the information.

You also indicate that records containing the individual's dates of attendance would not be located at the office of the superintendent of schools, and that you would have to call each of the schools within the county to see if such a document existed. Subsection A of § 2.1-342 of the Code of Virginia states that all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. (Emphasis added.) If your office does not maintain these records, then you are under no obligation to search for them in other offices. The appropriate public bodies from whom the requestor should request the records would be the individual schools within the county where the individual might have attended school.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 20 USCA § 1232g (b)(1).