Transcript Lawfully Managing Student Records

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 . . .
•
•
•
•
•
•
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•
•
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-boylike 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-11 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-11 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 lawenforcement 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.