FOI Advisory Council Opinion AO-02-01

January 3, 2001

Ms. Meredyth P. Partridge, President
Regulatory Support Services, Inc.
Manakin-Sabot, 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 letter of December 11, 2000.

Dear Ms. Partridge:

You have asked whether the Virginia Board of Funeral Directors and Embalmers ("the Board") may exempt from disclosure lists of applicants applying for licensure. You indicate that the Board has in the past provided your company with lists of the names of applicants who have applied to take the Board's licensing examination. Your company offers a study course to help students prepare for the examination. Recently, after receiving a complaint from one of the students whom you contacted from the list, the Board declared that such lists of applicants were exempt from disclosure.

Funeral directors and embalmers are one of many professions and occupations governed by the Department of Health Professions ("the Department) pursuant to § 54.1-2400 et seq. of the Code of Virginia. The Board is one of the regulatory bodies that comprise the Department. The Virginia Freedom of Information Act (FOIA) exempts certain records maintained and collected by the Department or its boards. Specifically, subsection A. 12. of § 2.1-342.01 exempts from disclosure [a]pplications for admission to examinations or for licensure and scoring records maintained by the Department of Health Professions or any board in that department on individual licensees or applicants. As a result, the Board may rightfully withhold the names of the applicants for its licensing examination.

The exemptions set forth in FOIA do not mandate that a public body withhold records when an exemption applies. Instead, the law provides that the records set forth in the exemptions are excluded from FOIA, but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. It appears from the facts that you present that the Board chose to exercise its discretion to release these records in the past, even though an exemption applied. The Board has more recently chosen to exercise the exemption that allows them to withhold the records from public access.

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

Sincerely,

Maria J.K. Everett
Executive Director