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Virginia Education Association v. Davison

Supreme Court of Virginia

August 31, 2017

VIRGINIA EDUCATION ASSOCIATION, ET AL.
v.
BRIAN C. DAVISON COMMONWEALTH OF VIRGINIA DEPARTMENT OF EDUCATION
v.
BRIAN C. DAVISON LOUDOUN COUNTY SCHOOL BOARD
v.
BRIAN C. DAVISON

         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Judge Designate

         PRESENT: All the Justices

          OPINION

          CLEO E. POWELL, JUSTICE.

         The Virginia Department of Education ("VDOE") appeals from the judgment of the Circuit Court of the City of Richmond ("circuit court") directing it to produce student growth percentile ("SGP") data for certain Loudoun County Public School students under the Virginia Freedom of Information Act, Code § 2.2-3700 et seq. ("VFOIA"). The Loudoun County School Board ("School Board") and the Virginia Education Association ("VEA") sought to intervene in the matter.[1] The circuit court permitted the School Board to intervene limited to the issue of whether Code § 22.1-295.1(C) applied to preclude disclosure of the requested information.[2] The circuit court denied the motion to intervene filed by the VEA. These appeals followed.

         I. BACKGROUND

         The facts of the case are not in dispute. Brian C. Davison ("Davison") contacted Loudoun County Public Schools requesting Standards of Learning ("SOL") test results for students in the County's schools. Davison was informed that VDOE was the custodian of the information he sought and was advised to submit his request to VDOE.

         Davison thereafter sent a VFOIA request to VDOE for the English and math assessment SGP aggregated score results for Loudoun County Public Schools sorted by teacher and by school over the past five years along with an explanation of the methodology used to calculate the assessment scores. In response to his request, VDOE indicated that score results do not include information for individual teachers. Davison provided VDOE with a link to its own website where an exemplar "Annotated Division Report" showed that VDOE had in fact compiled SGP results by teacher and school in the past.

         VDOE next responded that, despite the exemplar on the website, no such reports existed and that "the records that you are requesting only exist in a database that contains information directly related to students, they are considered scholastic records, which are exempt from disclosure under Va. Code Section 2.2-3705.4." Davison responded that, based on publicly available information, he believed that VDOE could produce summary reports that did not include student identifying information. VDOE acknowledged that such reports did exist at one time, but were no longer produced and again asserted that they were exempt from disclosure under VFOIA.

         On October 2, 2014, Davison filed a verified petition for a writ of mandamus requesting that the circuit court require VDOE to produce the SGP data. Davison also requested an award of attorney's fees, costs, and statutory civil damages for willful violation of VFOIA.[3] VDOE responded to the petition by demurrer. The circuit court overruled the demurrer and held an ore tenus hearing. The principal issue covered by the testimony and argument of the parties was whether the information Davison sought was subject to the exemption in Code § 2.2-3705.4 for "scholastic records" and the corresponding federal law protecting student privacy. See 20 U.S.C. § 1232g.

         In an opinion letter dated January 9, 2015, the circuit court found that the VFOIA exemption and federal protections did not apply. In its ruling, the circuit court noted that the section VDOE relied on covered a number of exemptions related to scholastic records. The circuit court noted further that the "issue seem[ed] to be confined to whether the information sought contains 'information concerning identifiable individuals.'" Specifically, the court noted that VDOE admitted that its database could produce reports with the information Davison requested without disclosing any student identifying information. Moreover, because the information in such reports was available in other forms, the court rejected VDOE's contention that it was being required to "creat[e] . . . a new public record" in order to respond to the request. The circuit court ordered that the writ of mandamus should issue.

         On February 6, 2015, the VEA filed a motion to intervene in the mandamus proceeding. On February 11, 2015, the School Board also sought to intervene. The circuit court denied the motions to intervene finding that, as private entities, they were not subject to an action to enforce VFOIA and, thus, had no standing to intervene. However, the circuit court stated that it would grant the School Board's motion 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).[4] The circuit court further indicated that it would grant a motion to rehear filed by VDOE raising the same issue.

         On rehearing, the circuit court entered three orders denying VDOE's demurrer, denying the motions of the various education associations to intervene, and entering final judgment for Davison and against VDOE and "the Intervenor Loudon County School Board on its motion to intervene previously granted." The circuit court found "in favor of [Davison] on the remaining issue: whether Va. Code Ann. § 22.1-295.1 precludes disclosure of teacher identifying information as and under the term 'teacher performance indicator' and whether such disclosure shall be made under the [c]ourt's prior ruling on January 9, 2015." Responding to the School Board's argument that the data sought was exempt as personnel records under Code § 22.1-295.1(C), the circuit court ruled:

While the evidence revealed that student growth percentiles can be used for multiple purposes, including teacher evaluation, on balance considering the testimony and evidence the student growth percentiles have not been used as a teacher performance indicator by Loudon County Public Schools.

         The circuit court directed VDOE to "produce and provide nonexempt fields of information maintained in its database, excising exempt fields of information in accordance with law pursuant to Va. Code Ann. § 2.2-3704(G)." The circuit court also awarded Davison $35, 000 in attorney's fees and costs against VDOE.

         The VDOE, the VEA, and the School Board each filed notices of appeal from the April 12, 2016 final order. VDOE filed a motion "to stay" enforcement of the circuit court's order pending appeal. The School Board filed a motion "to suspend" the court's final order. On May 13, 2016, the circuit court entered an order purporting to both "suspend" the final order and "stay" its enforcement effective May 4, 2016.

         On May 18, 2016, the circuit court entered an "amended" final order nunc pro tunc to April 12, 2016, in which it assigned joint liability for the award of attorney's fees and costs to VDOE and the School Board and also denied the civil damages sought by Davison against the VDOE employees. The School Board filed a second notice of appeal ...


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