Lawfully Managing School Records

Sherri D. Goodman Staff Attorney

West Virginia Department of Education Present in Spirit if not in Person

July 29, 2009

WHAT LAWS YOU NEED TO KNOW FOR CONFIDENTIALITY:• FERPA (Family Educational Rights and

Privacy Act)

• FOIA (Freedom of Information Act)

THE EXTRA FILE

• My experience is that most transportation supervisors keep a file on bus drivers, as needed, when complaints are made or investigations are conducted that do not result in formal discipline.

• This is not improper; but the file is obviously confidential.

FERPA

General Rule . . .

Can’t disclose education records without parental consent

Begs several questions . . .

• What are education records?

• What does “parent” include?

• Do I always need consent?

Education Record

• Any information – Directly related to student

– Collected, maintained, or disclosed

– By an educational agency

(or party acting on its behalf)

Records Include

• Any recorded information

• Handwritten, printed, electronic, film etc• Birth date, place of birth, social security

number, student ID number, parent information, test scores, disciplinary records, special ed. records, attendance records, pictures, health plans, immunization records

What about . . .

• Notes a teacher keeps locked in her desk?

NOT Student Records

• Sole possession notes• Not accessible to any other individuals

(including other teachers) except a temporary substitute

• Employee records• Physician/psychologist records notes

(that are not provided to school nurse or teacher)

Sole Possession Records

• Kept in sole possession of maker

• Used only as personal memory aid

• Not accessible or revealed to any other party except temporary substitute

• Not subject to disclosure

Scenario

• CPS worker comes to school and asks teachers and bus driver if little Steven has been acting strange [or stranger than usual].

• What can she say?

There is no prohibition against employees disclosing personal observations and concerns to a CPS worker. These aren’t considered records.

Records, cannot be shared without consent or subpoena.

Do ALL teachers or other employees have access to ALL students’

records?

Legitimate Educational Interest

• Only those school officials with a legitimate educational interest may obtain access to personally identifiable student information

• Determined on a case by case basis

Scenario • Bus driver is having a rough year with his

middle school bus run—the students disobey him constantly. He is worried that next year will be even worse, and considers early retirement. Before making the decision, he decides to go to one of the elementary school offices and check the records of this years’ 4th grade to see if next year’s passengers will be better. Is this allowed under FERPA?

ANSWER --• NO.

• It doesn’t really matter that bus driver doesn’t transport elementary school students.

• The point is that his retirement plans aren’t considered an educational purpose.

• But. . .he’s free to talk to bus drivers on elementary school runs about their own experiences.

Scenario • Bus driver believes his worst passenger is

little Steven. He’s always bad, but this week it’s worse than ever. He wonders if something has happened to cause him to act out, so he goes to the counselor’s office and reads little Steven’s file. Nothing is there – so he looks into his medical files to see if there has been a change in his Ritalin dosage.

• Is this o.k.?

ANSWER. . .• This is a closer question—probably ok

since the concern is focused on the student’s welfare. Of course, it’s easier to simply ask the counselor or school nurse to check rather than access the records directly.

How Record are Stored

• Not specifically prescribed in FERPA

• But . . .• Can’t leave records unprotected• Must use physical, technological,

administrative, or other methods to protect• Must maintain access log (name, date, ed. interest)

• Policies and data steward recommended• Review WVBE Policy 4350

Retention and Destruction• Can’t destroy if there is an outstanding

request• Explanations must be maintained as long as

record is maintained• Records to verify implementation of federally

funded programs – 5 years after completion• Must inform parents of destruction timelines

through public notice

Special Ed. Requirements• Parents shall be informed when personally

identifiable information collected or maintained or used is no longer needed to provide educational services to the child. The information must be destroyed at the request of the parent.

• Grades, classes attended, etc. may be maintained without limit

What can be disclosed without consent?• Directory Information

– Info that would not generally be considered harmful or an invasion of privacy if disclosed.

– Includes, but not limited to, name, address, telephone number, e-mail address, photograph, date and place of birth, field of study, dates of attendance, grade level, participation in activities and sports, weight and height of members of athletic teams, degrees, honors and awards received . . .

Directory Information Policy

• Must annually tell parents about directory information and allow parents a reasonable amount of time to request that the school not disclose directory information about them.

• Means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is discretionary

No Consent needed . . .• School officials with a legitimate educational interest;• Other schools to which a student is transferring or enrolling;• Specified officials for audit or evaluation purposes;• Appropriate parties in connection with financial aid to a student;• Organizations conducting studies for or on behalf of the school;• Accrediting organizations;• To comply with a judicial order or lawfully issued subpoena; • Appropriate officials in cases of health and safety emergencies;• State and local authorities, within a juvenile justice system,

pursuant to specific State law.

Specified officials for audit or evaluation purposes

• federal, state and local educational authorities for audit, evaluation, and enforcement purposes.

• exception does not apply to agencies that are not responsible for education.

State and local authorities, in a juvenile justice system, pursuant to state law• Adopted before Nov. 19, 1974, if the allowed

reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released;

• Adopted after Nov. 19, 1974, if the statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released.

Organizations conducting studies for or on behalf of the school• Agreement must provide that:• Study methods will not permit the personal

identification of students and their parents by individuals other than representatives of the organization

• The information will be destroyed when no longer needed for the purposes for which the study was conducted).

• “Organizations" includes, federal, state, and local agencies, and independent organizations.

Scenario• A process server arrives at your school

and hands you a valid WV subpoena requesting that copies of all of little Steven’s grades, disciplinary referrals, and attendance records be mailed to a well known local lawyer representing his father in a custody dispute.

• What do you do?

Subpoenas• Must make a reasonable effort to notify the

parent of the student or the eligible student of the order or subpoena in advance of compliance so that the parent or eligible student may seek protective action.

• Need not notify the parent if the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed.

District Responsibilities• Provide parent an opportunity to inspect and review

child's education records within 45 days of a request• Provide a parent with copies of education records or

make the records available to the parent if the parent lives outside of commuting distance of the school

• Redact the names and other personally identifiable information about other students that may be included in the child's education records.

• May charge a fee for copies and/or postage, but may not charge a fee for search and retrieval

Annual Notification• Procedure for exercising the right to inspect and

review records;• Procedure for requesting amendment of records;• Specification of criteria for determining who

constitutes a school official and who has a legitimate educational interest;

• Information designated as directory information and procedures for refusing information to be so designated; and

• Procedure for disclosure of education records without consent to officials of another school district in which the student seeks to enroll.

Annual Notification

• May be provided by any means reasonably likely to inform the parents of their rights.

• Must take steps to effectively notify parents who are disabled or who have a primary language other than English.

Parent Rights• Inspect and review the student's education records;• Seek amendment of the student's education records

believed to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

• Consent to disclosures of personally identifiable information except to the extent that FERPA authorizes disclosure without consent; and

• File with the USDE Family Policy Compliance Office a complaint concerning alleged failures to comply with FERPA.

Scenario

• Little Steven’s parents are divorced but have joint custody. His Dad now lives with Ms. M – but they are not married. She treats little Steven like a son. She comes to a parent teacher conference and wants to see Steven’s records. Can you show them?

Parent . . .• Includes . . .

– a natural parent– a guardian– or an individual acting as a parent in the

absence of a parent or a guardian• Like a stepparent living with the child

Parent Consent

• may presume that the parent of the student giving consent has the authority to do so unless provided with evidence that there is a legally binding instrument or a court order governing such matters as divorce, separation or custody, which provides to the contrary.

Amendment Request• School Must

– Consider a request from a parent to amend inaccurate or misleading information in the child's education records;

– Offer the parent a hearing on the matter if it decides not to amend the records ;

– Offer the parent a right to place a statement to be kept and disclosed with the record if as a result of the hearing the school still decides not to amend the record.

Scenario

• Little Steven was suspended for starting a fight on the bus. His Dad is furious – he can’t believe his choir-boy- like Steve would ever do this. He demands to see the bus video. What do you do?

• He also wants a hearing to amend Steven’s records to exclude reference to the unfair suspension. What next?

ANSWER• Bus video/DVD is considered a student

record. The FERPA problem is that other students are shown on the video, too. It’s not possible to redact the record to show just the student (especially in a fight).

• What is usually done is that a parent is permitted to view that portion of the video showing the incident but cannot make a copy.

• Any subpoena for the video/DVD should be sent to the Central Office. Generally, rather than notify every parent of passengers on the bus that day, the Court can enter an order in which all parties agree that the record shall only be used for litigation purposes and cannot be disclosed to anyone unconnected with the case.

Amendment Hearing• Hearing not required when:

– Seeks to change a grade or disciplinary decision;

– Seeks to change the opinions or reflections of a school official or other person;

– Seek to change a determination with respect to a child's status under special education programs.

FREEDOM OF INFORMATION ACT• West Virginia Code Section 29B-1-1 et

sec.

• General rule: Every person has a right to inspect or copy any public record of a public body in this state

• The custodian of any public records, shall furnish proper and reasonable opportunities for inspection and examination of the records in his or her office ;

• Shall furnish reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them..

• The custodian of the records may make reasonable rules and regulations necessary for the protection of the records and to prevent interference with the regular discharge of his or her duties.

• If the records requested exist in magnetic, electronic or computer form, the custodian of the records shall make such copies available on magnetic or electronic media, if so requested

• Requests should be in writing. E-mail is considered a form of writing.

• County needs to respond within five working days.

• However, the initial response does not have to include the records.

• Initial response acknowledges the request and indicates that a search will be completed within so many days and the requester will be notified where and when the records can be inspected..

SAMPLE FIRST RESPONSE• I am in receipt of your Freedom of

Information Act request dated [put date here], regarding [put exact language of request here]

• Please be advised that any records that are responsive to your request and not exempted by statute will be available for copying or inspection on [put date here] .

• Pursuant to West Virginia Board of Education Policy 1230, Freedom of Information Requests, persons seeking (a) public record(s) under the Freedom of Information Act (W.Va. Code 29B-1-1 et seq.) and who request that the information contained in the public record(s) be reproduced in copy form, will be required to reimburse the Department of Education 40 cents per page.

• On or before [date here] , you will be advised of the number of documents meeting your request, the cost to produce the requested documents, and the location where the documents may be inspected or obtained.

General rules covered by this first letter:• Can only charge for cost of reproduction

—not the time spent looking for records.• Will only produce records in existence.

You don’t have to create records.• If the request is to produce in electronic

form, can only charge for cost of CD. If being sent via e-mail and there is no hard copy, there is no charge.

• Requester is to be given the option of receiving copies by mail after paying the cost or coming in to review.

• Depending upon the information, it may be advisable to have an employee sit with the requester while reviewing the material.

• Requester will be free to take notes.• The letter notes that some documents

requested may be exempted from production by law

SECOND LETTER AFTER SEARCH:• The West Virginia Department of

Education has completed its search for records pursuant to your Freedom of Information Act request received [date here], regarding: [List here].

• Please be advised that the Department of Education does not maintain records responsive to numbers 5 and 6 above.

• .

• Items __________ cannot be produced because they are exempted under [state what statute or the section of the Freedom of Information Act.

• The records responsive to your request are available for copying or inspection at the West Virginia Department of Education as of [usually today’s date]

• Pursuant to West Virginia Board of Education Policy 1230, Freedom of Information Requests, persons seeking (a) public record(s) under the Freedom of Information Act (W.Va. Code 29B-1-1 et seq.) and who request that the information contained in the public record(s) be reproduced in copy form, will be required to reimburse the Department of Education 40 cents per page.

• The records responsive to your request consist of ten (10) separate pages. The cost for reproducing the documents will be $4.00. Upon receipt of a check or money order made payable to the _______ County Board of Education, the documents will be mailed to the address above.

• If you wish to view the documents in person, please contact [records custodian] at (304)_________ to schedule an appointment. Otherwise, our obligations pursuant to your request are at an end.

EXEMPTIONS:

• Trade secrets

• 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 [coninued]

• unless the public interest by clear and convincing evidence requires disclosure in the particular instance: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his or her own personal, medical or similar file;

• Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;

•

• Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement;

• Information specifically exempted from disclosure by statute, such as FERPA.

•

(5) Information specifically exempted from disclosure by statute;

• Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers;

• Internal memoranda or letters received or prepared by any public body;

• Documents prepared by or for attorneys in order to seek legal advice.

• Numerous security types of documents relating to national security

HOW DO PERSONNEL RECORDS RELATE?• Certain information in a personnel

record would be considered exempted, such as social security number, date of birth, home address, possibly evaluations and discipline.

• But salary and certification information (exclusive of medical) would be public.

• There is a West Virginia case in which the Court held that the concerns of parents for the safety of their children outweighed the privacy rights of a bus driver who was suspended and received psychiatric treatment for having an irrational episode on the bus. Parents had a legitimate right to determine for themselves whether he was safe to drive again.