Episode Twelve: Public Records, Student Records, and Privacy Laws

School districts are obligated to follow not only state public records laws, but also federal and state student privacy statutes and regulations. In this episode, Lisa and Miriam talk about the specific statutory requirements, particular exceptions allowed by the law, and complicated situations that districts sometimes encounter.

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Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law. Every so often we get together; we talk about the latest legal developments that affect districts, board members, administrators, really anybody who works with the schools.

Lisa: Today, we are going to discuss some basics of student records and public records access, the laws that apply and, most specifically, some examples of how these get districts tripped up. Let’s get started with first the key laws that are related to both public records and student records.

Miriam: Public records are governed by state law. In Ohio, we have the Ohio Public Records Act. In your state, if it’s not Ohio, you might have something else that you need to look into, but we’ll be talking about Ohio Public Records Act today. The student records, there might be some state laws. In Ohio, we do have a state law about student records, but there’s also FERPA, the Family Education Rights and Privacy Act, which is a federal law that applies nationwide to all school districts related to student privacy.

Lisa: With public records, these are going to be records that are kept by a public entity, so since public school districts fall into that category, you’re on the hook for this. They’re basically records that include a document, an item, any kind of physical form or characteristic including electronic records that the district keeps to document its organization’s functions, policies, decisions, operations, procedures or other activities that are going on. So a large amount of documentation kept in a district are going to fall into this public record definition.

Miriam: Basically, it’s what the district is doing, showing what the district is deciding, organizing, operating, anything that the district is doing as a district.

Lisa: With this component, including electronic records, that’s also going to include emails of your staff back and forth to parents, any of that kind of database of student records. Even if it’s not in a hard copy file, if you keep it electronically, as many districts do these days, you’re going to have documents in there as well that would be public records.

Miriam: For example, let’s take board emails. You might have a board member who sends an email to the superintendent and some other administrators saying, “Look, this parent is crazy. Why are we handling this situation that way?” That’s going to be a public record, and if the parent’s attorney requests all the public records relating to that individual, that’s going to be something you have to give over.

Lisa: Keep in mind the reason we’re bringing all this up is because it’s not just attorneys that can request these records. Pretty much, upon request of even just a citizen in the community, the district is going to be responsible for providing the requested records promptly within a reasonable period of time to whoever the requesting person is. There are some legal processes that can go through if you do not produce those records when they’re asked for.

Miriam: We’ll talk about those in a minute. Here’s some examples of what’s not a public record. It’s not a public record if it’s not about the organization as an organization, if it’s simply just people kind of– Let’s say you’re inviting somebody to a party, so you send out an email invitation. You’re like, “Hey, it’s Bob’s party. Everybody come to Bob’s party on Saturday. Here’s the directions”. That’s not going to be a public record because it has nothing to do with the organization functions, policies, decisions of the district.

Lisa: Also, keep in mind too when a request is made, if somebody just says, “I want all public records”– Say they just asked for all the district’s emails. You’re not necessarily going to have to just turn all that over. It’s going to be important that you are corresponding with your legal counsel to determine if it’s a legitimate request. For something like that, we would probably do a response that says, “This is overly broad and ambiguous, so we do not need to provide it until you give us more specifics of what we need to look for”. You’re not going to be burdened by requests that will just take up all your time and all your funds to actually comply with.

Miriam: Yes. These laws are really important, but the courts do not expect you to stop what you’re doing, to just put the entire district and education on hold while you gather up every single email from the last 20 years. That’s not going to be considered reasonable at all.

Lisa: On the other end of request for records are the student records, and I will say these seem to be a little more frequent-

Miriam: Yes, absolutely.

Lisa: -that districts are responding to these. As Miriam mentioned earlier, FERPA is really the key guiding law, and that is federal, so it will apply no matter what state you’re in. The definition of a student record for these is going to be basically some type of file or document or written material that contains information directly related to the student and is maintained by the educational agency. That maintained sometimes comes into play as far as, are you even really keeping this record? When you grade a test, are you keeping those, or do you just as practice go ahead and destroy them or give them back to the student or things like that?

Miriam: That’s an interesting supreme court case that I’m remembering, Lisa, as you’re giving that example. Actually, it was a United States Supreme Court case about FERPA where the court was taking a look at a teacher who had a practice of having students grade each other’s work. We see this all the time. I think we remember this in school.

Lisa: Often a good educational practice.

Miriam: Yes. You complete a worksheet, or you complete a quiz, and you switch it out with the person sitting next to you and see if you can grade their answers and what the grade is. The supreme court said this is not an educational record because you’re not keeping it. You’re not maintaining these files. This is just a temporary thing that you’re doing in your classroom, and then it goes in the trash.

Lisa: On the other end of that, though, some things that are educational records that districts sometimes forget about are going to be things like your EMS records in Ohio, disciplinary records, health records, certainly special education records, your IEPs, your ETRs, report cards, communication logs. I can go on and on with categories, but those are just some examples of things that definitely are going to be educational records if they’re about a specific student.

Miriam: I just want to clarify that it’s not just about academics. Sometimes you have school districts who say, “This is not about academics. This is just about discipline”. That’s not a good answer.

Lisa: Absolutely. Again, back to the definition if it’s directly related to the student, so even if it’s not about their academic performance and it’s maintained, it’s going to fall into that category. You are not going to be just randomly handing out these records, however. The general rule is that education records cannot be disclosed without written consent of the student’s parent, which often it’s the student’s parent who is asking for these in at least the situations we deal with on a regular basis.

Miriam: You can have the student’s parents requesting it, and then there’s a set of FERPA requirements for what you’re going to give over and the timeframe. FERPA controls the other situation where somebody else, not the parent, is asking for the records.

Lisa: Definitely, the two different situations. Also, keep in mind, once a student turns 18, they can request them themselves. There are some exceptions though under FERPA where this protected information can be given over without having written consent of the parent.

Miriam: If somebody else requests it and the parent doesn’t know about it or doesn’t give consent, you can still give over the records in these very specific exceptions.

Lisa: We won’t go through all of them today, but just to highlight some of the situations would be like a judicial order, a subpoena, a school official within the district that has a legitimate educational interest. That’s to say a student’s IEP, for example, should be shared with all the teachers that interact and are responsible for the education of a student. We don’t want you to take a overly narrow definition of this and stop sharing records for a student to people who do legitimately need to see it.

Also, other examples where you would provide it without having to have consent would be like in the event of a health or safety emergency, or even there’s an exception for when a registered juvenile sex offender is enrolled or attending a school and the school has notice of that.

Miriam: If there’s some kind of emergency in your school, if there’s a school shooter or whatever, you can just give over that information. You can give over safety information.

Lisa: Yes. I would give the caveat even for these types of situations, you’re still going to want to be in contact with your legal counsel because there still may be some other steps that you need to take first, such as maybe notifying parents in the case of like if there’s a judicial order, subpoena so that the parent of the child whose records are being requested under that would have an opportunity to oppose it.

Miriam: Yes. We see this frequently. The court says, “Go ahead and give over. Give over that kid’s information to some other attorney”. What has to happen is we have to give the parent a heads up. We have to write a letter to the parent saying, “Hey, your kid’s personal information is going to be given over to so-and-so, to this other attorney in this other case that you have nothing to do with, and you have 10 days or however many days. You have 10 days to oppose it, to go to the court and say no, don’t do this. Then if you do that, then the court will make up its mind, but if you just ignore our letter, then we’re handing it over on this and this date”.

Lisa: You had just mentioned about personal information. That’s another key thing to touch on really quick as far as student records. Personally identifiable information so that is going to be like the student’s social security number, other personal identifiers, may not be disclosed without written consent as well. The only caveat to this is going to be directory information can be, and that’s going to be defined specifically by your board policy.

We also mentioned earlier that school officials with a legitimate educational interest can have access to information including personally identifiable information if they really need to. There’s going to be a difference between if they want to know versus need to know. There are some court cases that address whether or not the information was disclosed to people that didn’t really have a legitimate need to have that information.

Miriam: I’m imagining two teachers talking to each other at recess time, and one of them says, “Hey, this crazy thing happened with one of the kids in my class. He came home and said this situation about his parents, and then he was acting out”. The second teacher whom she’s talking to has nothing to do with that child.

Lisa: Like your staff lunch room chatter, that’s going to be stuff where you need to be careful about what personally identifiable information you’re conveying to staff that don’t need to know about it.

Miriam: That’s such a common problem. I think that’s a really common situation.

Lisa: Yes, absolutely. Now that you have a general idea about this public records and student records and know that either can be requested under certain circumstances, also know especially for student records, there’s also going to be some other laws in your state like for Ohio, our Ohio operating standards and specific special education laws also have some specific components for student records as well. You’re going to want to make sure you know how those interplay with timelines and things like that. Generally, for a student record request, you’re going to have 45 days to respond and get the records out, but certainly, there can be some shortened timelines if it’s a special education student having to be prior to a key meeting like about an evaluation or an IEP. Again, just being aware of what those things are.

Let’s dive into some of the specific issues that we see in regards to these public record and student record request as far as what some of these disputes look like, and then we hit on some key areas of documents that come into play.

Miriam: Public records disputes were typically handled in Ohio under a writ of mandamus, which is basically when the parent comes to the court and says, “Hey, I have no other options. I asked the school for records. They didn’t give it to me, so I have no other options but to come to this court and demand that the court order the school district to give it over”. That’s how it used to be handled just very recently in September.

Lisa: Also, prior to September- I know where you’re going with that -there were also opportunities with the Ohio Attorney General and the Ohio Auditor for some dispute resolution. In September, house bill 321 in Ohio went into effect that discontinued those services.

Miriam: Now, generally, if a parent has a complaint about records or actually any individual who request public records, they go into a kind of a mediation procedure where there’s a specific special master appointed to try to resolve this and to mediate the case so that it doesn’t have to go further. It doesn’t have to be escalated up the chain unless obviously mediation fails.

Lisa: This is more of an expedited process to resolve these disputes. It actually has some really short timelines to keep it moving very quickly, and it is generally going to be initiated with the Ohio Court of Claims.

Miriam: If this process does not work out well for the district, if the parent or the requesting individual wins, under this new law, there is not a lot of money that the parent or requesting party can recoup. That person can recoup his or her filing fee which is $25, and the court can direct the district to hand over the record, but there’s not going to be other damages besides for that, possibly also attorney fees depending on the situation which is very different than FERPA.

If a school district is found to be violating FERPA on a regular basis, they stand to lose their public funding. The way that would work is first the parent complains to the FPCO which is the compliance office, the Family Privacy Compliance Office that’s responsible for enforcing FERPA. Then based on those discussions, based on that conversation, the district could stand to lose its funding although that’s I think very, very rare.

Lisa: Yes, but also in your point with that, federal funding can be substantial amount of money though, so should it go down that direction, a district could have a lot to lose. This also comes into play too for if it’s a special education student if you don’t turn over those records that can impact a case, or due process case, or complaint regarding special education as well. It’s not just as black and white as filing a FERPA claim.

Miriam: Yes, absolutely.

Lisa: Some of the questions we get on a frequent basis are back to the definitions of what are the records under the public records and student records. As far as emails, those are really going to make or break cases. I can’t tell you how many times we’re having discussions about settlement because of the content of emails that people don’t realize are public records and are student records.

Miriam: Yes. Sometimes something is a public record if it doesn’t mention the student’s name, but if it does mention the student’s name, then it could be a student record, and you’re going to have to give it over, depending on who’s asking. Very often, you’re just going to have to hand it over. Also, Lisa, just the same with me. I’ve just seen these things that people write. They write it to each other. I’m just thinking of an email where difficult situation, difficult parent, and obviously, the staff were kind of sick of it. One person writes– I think it was a principal. The principal’s writing to another administrator, “Hey, this parent’s coming in. I know she’s going to be crazy. I’m going to bring the popcorn, so we can all watch”.

Lisa: The venting snarky emails are no good.

Miriam: Sometimes people write personal emails from school. They’re writing to somebody else, and then they explain a situation. I can’t even say these things sometimes. Just people writing to their relatives about the problems that they’re having with a particular parent who happens to be of a particular race, and then the person makes some kind of global comment about that ethnic group. This is an email. This is an email about that child, and if the parent asks or if the agency asks specifically with enough specificity, we’re going to have to hand that over. Again, it’s just so important. Just be very careful what you write in emails.

Lisa: Absolutely.

Miriam: Always remember that anything you write in emails, any sentence that you write can be seen, could possibly be requested and used in a court or published in the paper.

Lisa: Yes. Miriam, you mentioned in that as well in emails that it may not be a student record if you don’t mention a student in it. However, if you’re rambling on about a student and it’s pretty obvious who you’re talking about, that is going to be a student record. I know some educators have gone to the practice of trying to use initials thinking that that keeps it from being a student record.

Miriam: No, it doesn’t.

Lisa: The only thing that that does is make the entire process of generating these records all the more difficult because then we’re having your technology department run searches for initials and seeing all kinds of crazy emails that have nothing to do with that, that now have to be sorted through to find anything that might potentially be about the student.

Miriam: I appreciate that. Thank you for pointing that out. Again, just to clarify. Even if a email or any kind of document doesn’t specifically say the child’s name, if a reasonable person could figure out who you’re talking about, that’s going to be a student record.

Lisa: Now, on to another exception. Personal notes are generally not considered an educational record. That’s going to be something that maybe you’re jotting notes down about things you observe about the child just to help you remember for some purpose whether it’s your grading or if you’re a school psychologist to remember what you need to put into a report, different things. Personal notes aren’t necessarily going to get turned over as an educational record. However, as soon as you share it with somebody-

Miriam: They’re not personal notes.

Lisa: -it’s no longer a personal note, and we’re turning it over. So just some things to keep in mind with that.

Miriam: Here’s a hot topic: videos.

Lisa: Yes. Video surveillance.

Miriam: Video surveillance, this is a hot topic because parents now want to see all the fights. They want to see the fight in cafeteria. They want to see the fight in the bus. They want to know whose fault it was. They want to know if their child was the victim or the bully, so they’re going to ask you for that video. Especially if you’re using that video to discipline their child or to make some kind of decision about their child, they’re going to ask you for that video, and then school districts have to decide whose record is this? Is this the student record of everybody who was on that bus? Is this a student record of those two kids who were fighting? And then what do we do if both parents want to see it? Are we going to have to give it over to both parents even though the other child is visible on the video?

Lisa: You can see the questions about this kind of snowball pretty quickly. Really, we generally have to go back to the definition and when we talked about that earlier for educational records is, is it maintained? Who is it maintained for in this type of situation? Say we have a situation; there is a fight say in the hallway or on the bus. Who should the district be maintaining that for?

Miriam: Yes. Who should that district be maintaining it for? Also, all of these things are just very new and complicated. The family compliance office has not given very clear directives on what to do if both parents ask for the video record. What is clear though is that the background kids don’t count. If you have two kids arguing in the hallway and there’s 50 children walking by, those 50 children that video is not their FERPA record.

Lisa: This is going to be where it’s really important to keep your legal counsel close and involved in these so that you’re not just turning over records either without redactions that need to be made or with redactions of stuff that you shouldn’t have redacted in the first place.

Miriam: Yes. We recently had a situation where a transportation director showed a video of a bus fight to the parents of the victim, and not only was the bully visible on the video but also the bully’s parent just walked in during the time they were showing the video and angrily demanded to see that video. That’s obviously a mistake on the transportation director’s part. You want to make sure that your staff and your bus drivers, your transportation directors, your teachers know about these FERPA laws and specifically know when to ask that question before handing it over to the parents.

Lisa: Just a couple other areas of issues to keep in mind. At least in Ohio, non-custodial parents are going to have the same rights and access to student education records as the custodial parent.

Miriam: Unless there’s an order specifically against that.

Lisa: Yes, exactly. That might vary by state. Also, stepparents have the same FERPA rights when it’s an instant where that stepparent is present on a day-to-day basis with the natural parent and the child and the other natural parent is absent from the home. So just some other situations to keep in mind.

Miriam: Tell me what you mean. Let’s say mom and dad are separated. Mom married a new guy, and dad doesn’t live–

Lisa: It’s not going to be where there is two involved parents still, natural parents. This is going to be more the situation where maybe mum re-marries; there’s a stepfather now, but the natural father is really not in the child’s life at all. Overall, just some recommendations when you’re dealing with these records, other than keeping legal counsel close, is make sure you’re following your retention policies and established procedures as far as what records you’re maintaining, how long you’re maintaining them. Also, keeping clear who maintains what and where. Often when we have a request that might not be immediate and is asking for records maybe two years past, districts have a hard time pulling those together not knowing who kept what where, did a teacher destroy records that should have been kept.

Miriam: I just want to jump in with that. We talked about bullying in the last few episodes. Very often, school districts have a retention policy which is two years and then we destroy everything. That’s a valid policy, but you might want to revisit that with your district when it comes to bullying complaints and investigations because, like we mentioned before, a bullying complaint can come in many, many years. A lawsuit can show up at your doorstep five, six, seven years after the event took place. Just to protect yourself, you want to have those records still available somewhere.

Lisa: Right. Absolutely. Another thing too is definitely think before you put anything in writing, so this is going to go for hard copy, pen and paper, especially your emails. The emails seem to be the thorn in everybody’s side these days. Make sure you’re training your employees about all of this so that they’re really clear that anything that they’re writing either somebody might get because it’s an educational record or even more so as a public record.

Miriam: People think that we’re so private. People think they have so much privacy, but they really don’t. Especially if you’re working for a public school district, anything you email, anything you write, it can be seen by the parent or even sometimes by the newspaper.

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Lisa: Next time we hope that you join us as we dive into some complexities that surround student discipline, and we hope that you take time and feel free to contact us via email so that we can know what your ideas are for future episodes.

Miriam: Thank you so much for listening to us. Give us a high rating on iTunes. Go on iTunes. Click those buttons. Give us a great rating. The algorithm will help us and will also help everybody else find our podcast and listen to it. I hope you enjoyed this, and have a great day.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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