Virginia FOIA Opinion Declares Lesson Plans Public, Opening Curriculum to Families
A Loudoun County Public Schools' FOIA response is the focus of a recent opinion released by Virginia's Freedom of Information Advisory Council.
In an opinion with statewide implications, Virginia’s Freedom of Information Advisory Council recently concluded that lesson plans are not automatically private. The advisory opinion (AO-02-26), which is applicable to all public schools, reaffirms Freedom of Information Act’s (FOIA) presumption of openness and requires that lesson plans be disclosed when requested, with any student-specific information redacted. This finding could reshape how families access educational materials across the Commonwealth.
Background
August 8, 2024, a parent began making requests for curriculum materials from Loudoun County Public Schools (LCPS) for Virtual Loudoun classes. The request covered everything from videos to lesson plans but explicitly excluded tests and exams. LCPS refused to provide any of the 125,000 pages of materials, citing copyright restrictions and sections of the Virginia Freedom of Information Act. Even after the parent narrowed the request to Algebra 2/Trigonometry materials for purposes like “criticism, comment, teaching, and potentially news reporting,” LCPS maintained that copyright concerns and the sole possession exemptions applied.
Lesson Plans Are Not Automatically Private
Under FOIA, scholastic records are those directly related to an individual student. Lesson plans, by contrast, generally describe what teachers intend to teach and are not inherently about a particular student. FOIA does contain a “sole possession” clause, derived from the federal FERPA law, that protects personal memory aids that are never shared.
The Council emphasizes that only truly personal notes—kept solely as memory aids and not shared with anyone but a substitute—are exempt. Once a lesson plan is used for routine instructional or administrative purposes or shared beyond the teacher’s private use, it no longer qualifies as a “sole possession” record and must be disclosed. If a lesson plan contains student names and/or other personally identifiable information (PII), the school should redact those details and release the rest.
FOIA’s Presumption of Openness
Virginia’s FOIA policy establishes a presumption of openness for all public records. The law states that meetings and records are presumed open unless a specific exemption is properly invoked. Any exemptions must be narrowly construed to maximize public access. In other words, public bodies must identify and justify any exemptions rather than defaulting to secrecy.
Copyright and Fair Use
LCPS leaned heavily on copyright law to block disclosure. The Council explained that there is no blanket FOIA exemption for copyrighted materials. While copyright holders enjoy exclusive rights, federal law’s fair‑use doctrine allows limited use for criticism, comment, teaching and news reporting. Whether fair use applies is a legal question for courts, but the opinion notes that LCPS only sought the copyright owner’s permission and did not appear to evaluate fair‑use possibilities.
Interestingly, the parent’s subsequent FOIA request uncovered a contract granting LCPS a perpetual, royalty‑free license to reproduce, publish and authorize noncommercial use of the instructional materials. This suggests LCPS may have more discretion to share the materials than it acknowledged, though the Council noted that “without more context, key provisions of this contract remain unclear, and could be for a court to decide.”
Tests and Examinations
LCPS cited FOIA’s test/examination exemption to justify withholding some records. The statute defines tests and examinations as tools used to evaluate students, employees or licensees. Because the parent specifically excluded tests and exams, this exemption likely applies only to scoring keys or documents that would jeopardize the security of an exam.
Why Parents Should Care
Transparency in Curriculum
Schools can’t automatically hide lesson plans or licensed course materials behind “scholastic records” arguments. That transparency helps parents monitor whether instruction aligns with their child’s Individualized Education Program (IEP).
Fair‑Use Considerations
While copyright law still matters, schools must consider whether releasing materials for criticism, comment, news reporting or teaching may be allowed under fair‑use principles.
Redaction, Not Wholesale Denial
If lesson plans exist and contain student‑specific notes, schools should redact that information and disclose the rest.
Final Words
The Council’s AO‑02‑26 opinion highlights the tension between protecting legitimate rights and fulfilling the public’s right to know. For parents, especially those navigating special education, the takeaway is clear. Don’t accept blanket denials at face value. FOIA requires schools to justify withholding records and to err on the side of disclosure. Lesson plans are not automatically private, and if they exist, they often must be shared—minus any confidential student details.