School Board Ordered to Produce Records

A Norfolk Circuit Court says a school board must produce records related to an investigation of a middle school’s testing procedures in response to a newspaper’s FOIA request, but the school board may exclude from production any individual records considered in toto or in part a scholastic record or a personnel record, with information on “identifiable individuals.”

At the outset, the court reiterates and incorporates the July 26 rulings that the records are not excluded from disclosure under the Freedom of Information Act as protected by the attorney-client privilege or as legal memoranda, legal work product or other work product “compiled specifically for use in litigation.” Also, for the purposes of this matter, the court must define “personnel records,” which, in addition to “scholastic records,” it concludes were compiled, examined and inquired into by the panel.

All the records at issue represent compilations of the three-member panel formed by the superintendent on or about Dec. 17, 2009, to investigate the alleged “testing irregularities” at a Norfolk middle school.

This case focuses on what the school board iiimustiii produce, the minimum production required by law, and not what it “may” produce in its discretion. The court’s opinion and rulings will maintain this focus.

This court considers “personnel records” as records of or pertaining to a specific, identifiable NPS employee and touching directly upon that individual’s performance, discipline, attendance, income, social security number, tax-related matters, personal background, circumstances and education and other information bearing upon the individual’s employment relationship with NPS and for which either the employee or NPS may have a reasonable expectation of confidentiality.

Because of the nature of the two categories of FOIA excludable records at issue, personnel and scholastic records, and their protected status under FOIA (and other applicable law), this court concludes such status is iiinotiii affected by the outcome of any inquiry regarding whether the superintendent and/or the school board committed ultra vires acts in forming, charging or otherwise permitting the panel to convene and act under their imprimatur.

The records constitute work product compiled specifically for use in an active administrative investigation that is properly the subject of a closed meeting under Code § 2.2-3711. The superintendent’s mandate sought investigation into personnel performance, personnel behavior and identification of the persons involved in the testing, including investigation as to any wrongdoing or substandard performance. Such work as that done by the panel, as charged and as evidenced by its proceedings, interviews and compilations, did not constitute an administrative investigation within the meaning of § 2.2-3705.1(3). As the investigation would have been “active” during the time it occurred, the panel’s work, at least at one time, constituted an “active administrative investigation” under § 2.2-3705.1(3).

The panel’s administrative investigation also concerned matters that are properly subject to a closed meeting under § 2.2-3711, per § 2.2-3705.1(3). And the records compiled by the panel constitute “work product specifically compiled for use” in such an active administrative investigation.

The court concludes the records compiled by the panel constitute “work product specifically compiled for use” in the panel’s administrative investigation.

However, the panel’s administrative investigation is no longer “active,” and as a result, the records are no longer subject to the exclusion of § 2.2-3705.1(3).

Based on its examination of the language of § 2.2-3705.1(3) and its consideration of the pertinent factors, the court concludes the records are not properly subject to FOIA exclusion under § 2.2-3705.1(3) once its administrative investigation ceased to be “active.” Therefore, the school board may only exclude from production to plaintiff certain records among the total records compiled – personnel and scholastic records containing identifying information.

The school board must provide the requested records to the Virginian-Pilot, except for those records properly classified as scholastic records containing information concerning identifiable individuals, and personnel records containing information concerning identifiable individuals. The school board may properly exclude from production to plaintiff any individual record properly considered in toto or in part a scholastic record or a personnel record, containing information concerning identifiable individuals, under §§ 2.2-3705.1(1) and § 2.1-3705.4(1).

Virginian-Pilot Media Cos. LLC v. City of Norfolk School Board (Thomas, J.) No. CL 10-2815, Dec. 28, 2010; Norfolk Cir.Ct.; D. Stan Barnhill for plaintiff; Wayne Ringer, Chief Dep. City Att’y, for school board. VLW 010-8-236, 17 pp.