December 7, 2006

Carl H. Friebel, Jr., Ed.D.
Harrison County Schools
Post Office Box 1370
Clarksburg, WV 26302-1370

RE: Interpretation of the Freedom of Information Act

Dear Dr. Friebel:

You have asked whether you should release documents pertaining to two citizens complaints filed against you by a member of the Harrison County Board of Education, pursuant to a request made under the Freedom of Information Act ("FOIA").

The FOIA statute, West Virginia Code 29B-1-4(a)(2), exempts from disclosure information of a personal nature such as that kept in a personal, medical or similar file if the public disclosure thereof would constitute an unreasonable invasion of privacy. The West Virginia Supreme Court has clarified that "personal" is synonymous with "personnel."

There is no blanket exemption. Each request must be considered individually to determine whether disclosure would cause an unreasonable invasion of privacy. The Supreme Court has directed public agencies to consider these factors:

1. Whether disclosure would result in a substantial invasion of privacy and, if so, how serious. 2. The extent or value of the public interest, and the purpose or object of the individuals seeking disclosure. 3. Whether the information is available from other sources. 4. Whether the information was given with an expectation of confidentiality. 5. Whether it is possible to provide some disclosure that would limit the invasion of individual privacy.

Since the complaints are against you, it may be difficult for you to have sufficient objectivity in determining whether disclosure would result in a substantial invasion of your privacy. However, if you do not object to disclosure, there is no concern about objectivity.

You will also need to determine whether disclosure of all documents would result in the invasion of someone else's privacy, if, for example, the citizens complaints concerned how you handled a personnel matter about an employee, and the documents disclosed information of a personal or medical nature about that employee. Also, to the extent the decision contains information from the educational records of a student, disclosure of the decisions may violate the Family Educational Rights and Privacy Act unless any information that identifies the student is redacted.

Finally, you need to determine whether information was provided during the course of the complaint process with an expectation of privacy. This last factor may depend upon the Harrison County Schools policy on citizens complaints. West Virginia Board of Education Policy 7211, 128 CSR 188 directs that all meetings and hearings in the citizens appeal process be conducted in private unless one of the parties requests that it be open. Even then, if personal matters are being discussed, the hearing may be temporarily closed. However, the Board's Policy is silent as to whether the written decision shall be public or private.

I hope I have been of assistance.

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools