by James C. Sherlock
On Sunday I asked the FOIA Council to provide an advisory opinion on the University of Virginia’s decision that information about that school’s threat assessment team deliberations in the case of the November shooter, Christopher Jones, will not be released as I requested.
I received the answer this afternoon, which is far quicker than I anticipated. The Council suggests a more binding route. I quote:
Dear Mr. Sherlock:
In this instance, it appears that there may be some miscommunication or misunderstanding given that it appears that you have asked for threat assessment team information and certain other information pertaining to Mr. Jones, but in reply the University has cited the scholastic information exemption rather than the threat assessment team information exemption.
You also mentioned that the University indicated that redaction of these records would be so extensive as to effectively render them meaningless. You are correct that the threat assessment team information exemption requires that certain information be made available after certain types of incidents, and it would appear to apply to such threat assessment team records after an incident such as this one that resulted in student deaths.
However, the University is also correct that scholastic records are exempt from mandatory disclosure (and although the University did not appear to cite other provisions of law, note that certain student contact information is actually prohibited from release pursuant to subsection B of § 2.2-3705.4, and there are also various provisions of law outside of FOIA that may also affect access to student records).
It is possible that either or both of these exemptions could apply in different scenarios depending on the actual contents of the records, but without knowing those contents, it is not possible to render an informed opinion regarding whether these records are exempt from disclosure or must be produced.
To that end, you asked that this office review the 65 records withheld by the University in this matter and render an opinion based on that review. The Virginia Freedom of Information Advisory Council is a state legislative branch council that was created to issue opinions on the operation and application of the Freedom of Information Act (FOIA), to publish educational materials, and to provide training about FOIA.
While we can provide advice and guidance regarding FOIA, this office is not a trier of fact nor does it have the authority to issue orders or compel the production of records. Therefore, this office cannot compel the University to produce the records that were withheld, nor can we make any binding legal determination regarding whether those records are or are not exempt from disclosure.
If you seek such a review, the statutory remedy provided in Va. Code § 2.2-3713 is to file a petition for mandamus or injunction in either general district or circuit court (petitioner’s choice).
The court would then have the authority to review the records in question under seal and make a binding legal determination as to their status. The courts publish a sample form and instructions for use in general district court which we have linked on our Forms and Sample Letters webpage.
Please do not hesitate to contact us if you have any questions or need additional information but please be advised, as with any other type of court proceeding, you may wish to consult your own attorney before deciding whether to file a petition. Please do not hesitate to contact me if you have any questions or need additional information.
I have thanked that body for the speed and clarity of its response. It is very helpful. Petitioning a Circuit Court to review the documents and render a decision as suggested by the FOIA Council seems right.
It is the lowest court of record, and this should be on the record.