FCPS Defends Confidentiality of Privileged Attorney Report and Records in Response to the Virginia AG’s Unjustified Demands for Disclosure
June 20, 2023: Update
FCPS has cooperated, and continues to cooperate, with the Virginia Attorney General’s investigation focusing on notification to FCPS high school students regarding their National Merit commendations. However, when the AG (on June 1) went to court seeking to subpoena a privileged investigation report prepared by our outside legal counsel, we expressed a number of concerns, including that the AG’s actions could lead to the public disclosure of the names of 23 FCPS employees who were interviewed as part of that investigation, invading their privacy and potentially subjecting them to harassment and threats.
In its June 1 court filing, AG Miyares continued to disregard such privacy concerns by openly disclosing those names in non-confidential exhibits. Fortunately, the AG’s Office this past week agreed with our counsel to take actions to keep those exhibits out of the public record, showing that they now are beginning to appreciate the importance of protecting the privacy of our teachers and staff.
Nevertheless, as recently as last Tuesday, in a televised interview, AG Miyares appeared to dismiss the significance of such privacy and safety concerns, claiming that he was entirely unaware of anything supporting concerns that FCPS teachers and staff have received threats over this issue. These and other recent public statements by the AG are inaccurate. Our legal counsel today sent a letter to the Attorney General drawing attention to these inaccuracies. That letter also references a prior letter sent to the AG on March 14, 2023, in which our counsel advised the AG and his staff of the serious nature of such threats and asked that he stop contributing to such concerns by naming individual FCPS employees and falsely accusing them of discriminating against students.
In his June 13 televised interview, AG Miyares also told the reporter that FCPS counsel, after receiving his June 1 legal filing, did not “communicate with [his] office,” but rather simply refused to cooperate and rushed to court. These statements are also inaccurate. Prior to filing our legal objections to the AG’s subpoena petition, FCPS counsel contacted the AG’s Office multiple times and sought to explore whether there was a way to provide the requested report to his office confidentially as an aid to their investigation, without triggering a broad public disclosure of private details and without waiving the attorney-client privilege. It was only after learning that the AG’s office was not amenable to such an approach that we were forced to make a court filing objecting to the requested subpoena.
June 12, 2023: News Release
Today Fairfax County Public Schools filed legal objections to the Virginia Attorney General’s recent petition to subpoena production of certain confidential privileged records.
This winter, FCPS retained an outside law firm—Sands Anderson PC—to conduct an independent investigation into the process FCPS high schools have followed in notifying students designated as Commended Students by the National Merit Scholarship Corporation (NMSC) of their NMSC recognition. As requested, Sands Anderson drafted a detailed privileged report. FCPS regards that report as confidential and subject to attorney-client privilege, and therefore has not released the report publicly.
In late March, FCPS did release a high-level summary of Sands Anderson’s key fact findings, explaining that the firm’s investigation found no evidence of any inequity or racial bias and no evidence that FCPS deliberately withheld notification of National Merit commendations from any student. The summary did not disclose any details relating to individual students, teachers, or staff, nor did it disclose Sands Anderson’s legal opinions or conclusions.
As also announced on March 29, FCPS has developed a new regulation that outlines the process all of our high schools will now follow in notifying all students of any National Merit Scholarship honors and awards going forward.
The Virginia AG recently sought to subpoena production of Sands Anderson’s privileged investigation report and witness interview materials. FCPS is opposing the AG’s subpoena for multiple reasons.
1. The AG Has No Need for This Information. FCPS has fully cooperated with the AG’s investigation and has provided to the AG the same documents and data that were reviewed by Sands Anderson. The AG has access to all the facts and can conduct its own investigation if it believes there is good cause to spend additional taxpayer dollars probing this issue.
2. The Information the AG Seeks Is Privileged. When legal issues arise relating to events occurring within our schools, FCPS has a right and a responsibility to efficiently uncover the facts and obtain sound legal advice. In this particular matter and in future matters where legal issues may be raised, it is essential that FCPS have the ability to secure this type of confidential, privileged legal support.
3. The AG’s Actions Threaten the Privacy of FCPS Staff. The AG is seeking to obtain notes and recordings of interviews that FCPS’s outside counsel conducted with various teachers and administrators. Turning those interview materials over to the AG would invade the privacy of these individuals. It would also be a troubling precedent and could undermine cooperation with similar inquiries in the future.
4. The AG Is Irresponsibly Putting Individuals at Risk. The AG is seeking to have a court set aside FCPS’s attorney-client privilege, which could cause Sands Anderson’s investigation report and interview materials to be broadly disclosed to the public—including the identities of individuals who were interviewed and the content of their detailed statements. As the AG is fully aware, FCPS administrators have already been threatened and harassed relating to this issue. FCPS will not voluntarily agree to take any step that could cause our teachers and staff to be placed at risk.
It is regrettable that the AG is continuing to devote public resources and funds to this issue. The AG has all the information it needs to conduct its own investigation. Nonetheless, it has gone to court to try to breach FCPS’s attorney-client privilege. As a matter of principle and in order to protect our valued teachers and staff, we are opposing this unreasonable legal action.