From the SPLC Legal Network: A new FOI obstacle for journalists who need access to student testing data

A recent opinion by the Virginia Supreme Court illustrates just how closely requests for teacher-specific information can be scrutinized, and drives home the importance of carefully considering an open-records request before making it.

In Virginia Education Association v. Davison, the wording and punctuation of a Virginia Code section resulted in a reversal of a lower court’s decision to require production of student testing results on a teacher-by-teacher basis. In short, grammar matters—particularly when analyzing and applying a statute.


The Request

Brian Davison, a Loudon County parent, requested student growth percentile (SGP) test results for students in his district's public schools. Specifically, Davison sent a Virginia Freedom of Information Act request to the Virginia Department of Education (VDOE) for English and math aggregated score results for Loudon County Public Schools, sorted by teacher and by school over the past five years.

After attempts to reach a resolution with VDOE failed, Davison filed a verified petition in October 2014, asking the circuit court order VDOE to produce the requested test results. The circuit court found that the VFOIA exemption for scholastic records (Va. Code Section § 2.2-3705.4) and federal protections did not apply, and ordered that the information be provided. The circuit court rejected VDOE’s argument that Davison’s request would require creating a “new public record” and noted that the department admitted that its database could produce reports of the requested information without disclosing student identifying information.

Approximately a month after the ruling, the Virginia Education Association teacher organization and Loudon County School Board filed motions to intervene in the case. The circuit court allowed the school board to intervene for the limited purpose of asserting an exemption for “aggregate teacher performance indicators or other data” as being confidential portions of teachers’ personnel files as defined in Code § 22.1-295.1(C). VDOE was also allowed to raise the same issue on rehearing.

Nonetheless, the circuit court again sided with Davison on rehearing, finding that the records did not qualify for an exemption to the FOIA law that allows agencies to withhold teacher performance indicators. The court found that SGPs could be used for teacher evaluations, but had not been used as a teacher performance indicator by the Loudon County Public Schools.

The Virginia Supreme Court Decision

On appeal, the state supreme court reversed, focusing on Code § 22.1-295.1, which at the time provided in part:

C. Teacher performance indicators, or other data used by the local school board to judge the performance or quality of a teacher, maintained in a teacher’s personnel file or otherwise shall be confidential but may be disclosed (i) pursuant to court order, (ii) for the purposes of a grievance proceeding involving the teacher, or (iii) as otherwise required by state or federal law. Nothing in this subsection shall be construed to prohibit the release or to limit the availability of nonidentifying, aggregate teacher performance indicators or other data.

The Virginia Supreme Court agreed with VDOE and the School Board that SGP data remains a teacher performance indicator and confidential regardless of whether it was actually used in evaluating teachers. Based upon the comma usage, the Virginia Supreme Court concluded that the phrase “used by the local school board” referred solely to the phrase “other data”—and not to the phrase “teacher performance indicators.”

The court found that the SGPs requested by Davison are confidential pursuant to Virginia law regarding teacher personnel files, meaning VDOE could not produce results on a by-teacher basis.

The Amended Code Section

As noted in the Supreme Court’s opinion, the first sentence of subsection C of Code § 22.1-295.1 was amended, effective July 1, 2016. Before the circuit court entered its final order and the defendants appealed, the state legislature revised subsection C, likely to address the circuit court’s interpretation of the prior version:

Teacher performance indicators or other data collected by or for the Department of Education or the local school board or made available to and able to be used by the local school board to judge the performance or quality of a teacher, maintained in a teacher's personnel file or otherwise, shall be confidential but may be disclosed, in a form that does not personally identify any student or other teacher, (i) pursuant to court order, (ii) for the purposes of a grievance proceeding involving the teacher, or (iii) as otherwise required by state or federal law.

This revised language arguably extends confidentiality further than under the original provision by replacing “used” with “collected” or “made available to and able to be used by.” In balancing the interests of public accountability and individual privacy, the Virginia legislature appears to favor privacy for its teachers.

Nonetheless, it is important to remember that Virginia, like most states, provides access to some form of de-identified records. The state law at issue in this case specifically stated (and still states) that the exemption does not “prohibit the release or ... limit the availability of nonidentifying, aggregate teacher performance indicators or other data.”

Going Forward

As discussed in a prior SPLC post, there is a great deal of variation among states regarding access to teacher evaluation records. It is important to be familiar with the parameters of open-records access in your particular state.

This case drives home two lessons for those who report on education issues: (1) Consider whether your story requires the level of specificity your FOIA request seeks; and (2) consider a conversation with the agency's records custodian to find an acceptable compromise. As Davison did, know what kind of information and reports the state releases regarding the subject matter you are pursuing so that you are prepared to challenge limitations and exemptions that the agency may claim.

Karen Williams is a counsel in Cozen O’Connor’s Criminal Defense & Internal Investigations practice and a member of SPLC’s Attorney Referral Network. She is the author of “Disparity in Copyright Protection: Focus on the Finished Image Ignores the Art in the Details,” published in the American University Law Review. Prior to law school, Karen was a news designer at The Charlotte Observer.

Tagged: freedom of information, freedom of information, news, news-recent, public records, recent-news, teacher evaluations