Attorney General's Opinion 1983-84 #449

March 21, 1984

The Honorable James F. Almand
Member, House of Delegates

This is in response to your request for my opinion as to the applicability of the Virginia Freedom of Information Act, 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act") to a local school board policy involving teacher evaluation ratings. You advise that it is the policy of the superintendent of a particular school division to provide a written report to the school board each year of teacher evaluation ratings by school (but not by name). You have indicated that the local chapter of an education association has filed a request with the superintendent pursuant to the Act asking for a copy of the report. The request was refused on the grounds that the record was compiled in confidence for use at an executive meeting and that the report is a personnel record, as provided by 2.1-342(b)(3) and 2.1-342(b)(5). You have indicated that it is your understanding that the teacher evaluation ratings are divided by school and do not refer to individual teachers by name or otherwise provide a method by which the individual teachers may be identified in conjunction with a particular rating.

Section 2.1-342(a) states that: "[elxcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizen of this Commonwealth...." Official records for purposes of the Act are "all written or printed books, papers, letters, documents...reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business." See, 2.1-341(b). A written document summarizing teacher ratings by school prepared by the superintendent and distributed to the school board is clearly an official record subject to the Act. Section 2.1-342(b)(3) excludes "personnel records" from the mandatory disclosure provisions of the Act, except that the person who is the subject of the records is entitled to access to them. There is no definition of "personnel records" in the Act. This Office has consistently interpreted the exclusion for personnel records to apply only to records that pertain to identifiable individual employees. See 1979-1980 Report of the Attorney General at 382; see, also, 1976-1977 Report of the Attorney General at 317. Based up losed is not identifiable by name or other information in the reports, the information is not a personnel record for purposes of the Act. This means that the exclusion provided in 2.1-342(b)(3) is not applicable, and, unless another exclusion applies, the information is subject to the disclosure requirements of the Act.1

You indicate that the superintendent stated the report was prepared for an executive meeting. There are two separate provisions in 2.1- 342(b) which ex ning or resignation of public officers, appointees or employees of any public body...."

The material which you have provided does not contain enough factual information about the teacher evaluation ratings to determine whether the document is part of an active administrative investigation, or if the material was compiled exclusively for an executive meeting. If it is material which is not a part of an active administrative investigation which is properly the subject of an executive or closed session,pointment, promotion, performance, demotion, salaries, disciplining or resignation of public officers, appointees or employees of any public body...."

The material which you have provided does not contain enough factual information about the teacher evaluation ratings to determine whether the document is part of an active administrative investigation, or if the material was compiled exclusively for an executive meeting. If it is material which is not a part of an active administrative investigation which is properly the subject of an executive or closed session, then the exclusion in 2.1-342(b)(s) would not apply. Similarly, if the material was not compiled exclusively for an executive meeting, the exclusion in 2.1-342(b)(1i) would not apply. To summarize, the report prepared by the superintendent is a public record, subject to disclosure, unless it falls within the ambit of the exception in 2.l-342(b)(s) or 2.1- 342(b)(11) as above described.

Footnotes:

1. This conclusion that the report is generally available under the Act unless one of the specific exemptions applies is similar to an Opinion found in 1974-1975 Report of the Attorney General at 581 in which it was held that a report summarizing, on a school-by- school basis, the results of scholastic achievement tests administered to students was available under the Act.