FOI Commission: Don’t Use Students As Shield

Achievement First board discusses misconduct behind closed doors.

This story was first published in the New Haven Independent.

Schools may no longer hide evidence of educator misconduct by claiming that they need to protect students’ confidentiality, according to a ruling by the Connecticut Freedom of Information Commission.

The FOIC, enforcers of the state’s open-records law, unanimously voted to set that precedent —  ensuring access to educator misconduct records, as already spelled out by state law  —  at its Thursday afternoon meeting in Hartford, in a case that the New Haven Independent brought against Achievement First Amistad High School.

(Note: I was the reporter who filed the complaint and argued it.)

The Commission said that Amistad illegally withheld 69 pages of records detailing how it handled Morgan Barth’s alleged misconduct in October 2018. Barth, the charter school’s former principal, resigned after the Independent obtained security-camera footage of him shoving a student who was trying to walk out of his office.

Amistad, which wouldn’t release a single page about that incident in response to the Independent’s public-records request last spring, will now have to turn over those 69 pages “forthwith,” or “without delay,” the commission ruled.

Kathleen Ross, the hearing officer who listened to testimony, read post-hearing briefs and reviewed all the records in secret, wrote the seven-page draft decision that the commissioners approved on Thursday.

(Both parties filed opposing briefs, for Amistad High School and the New Haven Independent, which also deal with the scope of the records search and the applicability of other exemptions for attorney-client communications and preliminary drafts.)

The commission’s decision sets a new framework for how schools should apply an often-abused federal law, the Family Educational Rights and Privacy Act, or FERPA, when citizens ask for documentation of a school employee’s rule-breaking that happens to involve a student.

Previously, school districts had to evaluate whether those records might give away “personally identifiable information” about a student.

“In prior Commission decisions, the Commission employed a broader construction of the term ‘education records,’ largely relying upon the phrase ‘Personally Identifiable Information’” from federal regulations, Ross wrote. “Utilizing that analysis, if a record ‘personally identified’ a student, the Commission generally concluded that the record was exempt under FERPA and that the agency was prohibited from disclosing it.”

Even if they planned to redact the student’s name from the files, schools still had to figure out whether someone might be able to piece together other available information to deduce who the student is “with reasonable certainty.”

That could lead to inconsistencies, depending on who requested a record when.

A school might’ve been able to release everything until an article hit the newsstands. Or it might’ve been able to release everything to a total stranger but not an athletic coach at the school who knew the kids involved.

Achievement First Amistad High School.

But with this decision, the Freedom of Information Commission took a step back: Are these documents actually “student records,” akin to the transcript of grades or log of detentions that are kept in the main office? No, in fact, they’re “employee disciplinary records,” Ross said.

Ross said Achievement First’s lawyer did not cite any Connecticut court cases that made sense of whether misconduct records might be “directly related to a student,” meaning they’d still be covered by FERPA.

But she added that “courts in other jurisdictions” had weighed in on what that key phrase, “directly related to a student,” means in the context of misconduct records.

“Records of complaints and investigations of misconduct by teachers, administrators or staff, in cases where students are the alleged victims and witnesses and therefore are identified in the records, are not education records protected by FERPA, because they do not contain information ‘directly related to a student,’” Ross wrote.

“Rather, such disciplinary records are ‘directly related’ to the subject of the complaint, and only tangentially related to the student,” she continued.

Ross, saying she was “looking to burgeoning and relevant law in other jurisdictions,” cited eight cases from other state and federal courts that guided Connecticut’s new precedent.

For instance, in a state case in Pennsylvania (that’s still under appeal), a judge said that a video of a teacher who “roughly disciplined” a student on a school bus was ‘directly related’ to the teacher, not the student, Ross said.

Same for a number of federal cases, in which judges in Ohio, Michigan and Pennsylvania said that student complaints and student witness statements are ‘directly related’ to the teacher being investigated, she added.

But there was one contrary decision, in which a panel of state appellate judges in Florida said a student’s email complaining about a teacher’s “inappropriate classroom behavior” was ‘directly related’ to both the student and the teacher, she pointed out.

The new precedent builds on two prior Connecticut cases that the Freedom of Information Commission previously adjudicated.

In 2013, Linda Lambeck, a Connecticut Post reporter, successfully argued that a security-camera video of a Bridgeport Public Schools principal dragging two kindergarteners, in which the students’ faces were so grainy that they weren’t personally identifiable, was not “directly related to a student” and therefore not an “education record.”

And in 2017, Jay Hardison, a Darien resident who frequently uses FOIA, successfully argued that parent emails with complaints about school procedures also were not “directly related to a student” and therefore not an “education record.”

“Upon careful consideration, and a review of current relevant law on the topic, it is found that the teacher/employee disciplinary records in this case … are not ‘education records’ because they relate directly to teacher/employee discipline and are not ‘directly related to a student,’” Ross said. “It is concluded that such records therefore are not exempt from disclosure pursuant to [a section of state law incorporating FERPA] and FERPA” itself.

“This conclusion is consistent with, and the Commission hereby adopts, the line of reasoning in cases from other jurisdictions, … related to teacher/employee disciplinary records, where such disciplinary records include the images, names and/or other information that identifies a student,” she wrote, adding that because of another provision in the law, those student names and addresses should still be redacted before release.

Amistad, part of a charter school network whose administration is already largely exempt from Connecticut’s open-records laws, can still sue the Freedom of Information Commission in state court within 45 days to try to block release of the records.

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