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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Michael Jones, |
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Complainants |
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against |
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Docket
#FIC 1999-436 |
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Superintendent of Schools, New Hartford Public Schools; and
New Hartford Public Schools, |
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Respondents |
January
26, 2000 |
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The above-captioned matter was heard as a contested case on November 1 and November 8, 1999, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondents are public agencies within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.].
2. By letter dated September 21, 1999, the complainant, through his attorney, requested from the respondents the following twelve categories of records and information:
a. copies of Eric Jones’ file, including all minutes of PPTs or other meetings conducted on behalf of or concerning Eric Jones;
b. copies of all documents relating to New Hartford School policy on retention of students;
c. copies of all documents relating to reasons why students have been retained in the academic years 1997-1998 and 1998-1999, with the exception of identifying information;
d. all documents that indicate which students will be socially promoted and which will be retained and why;
e. any notes, memoranda or other documentation or information from any meeting, committee, or conference that was called within the last month for the purpose of dealing with Mr. Michael Jones;
f. if no documentation exists [responsive to 2.e., above], indicate when and where such meetings were held, who was at attendance and what decisions were made;
g. indicate what instructions went to New Hartford School District employees regarding any communications with Mr. Michael Jones;
h. copies of all documents relating to the New Hartford Public School system’s policy on normal advancement of students and on accelerated advancement of students;
i. an evaluation of Deborah L. Levy, Ed.D recommending that Eric Jones not be retained and copies of all documents that the New Hartford Public School System is relying upon for not following the recommendation of Dr. Levy;
j. copies of all documents relating to New Hartford Public School policy on religious holidays for Jewish students;
k. all reasons and provide all documents for retaining Eric Jones in 1st grade; and
l. all documents relating to other students who were retained in the academic year 1999-2000, with the exclusion of identifying information.
The complainant’s attorney attached to the letter of request a copy of a letter signed by the complainant authorizing the attorney to represent him as attorney and educational consultant with regard to his son.
3. By reply letter dated September 29, 1999, the respondents responded to the request described in paragraph 2, above, and advised that:
a. most of the records, to the extent they exist, were exempt under §1-210(b)(17), G.S., [formerly §1-19(b)(17), G.S.], and the Family Educational Rights Privacy Act, 20 U.S.C. §1232g, et seq. (hereinafter “FERPA”);
b. with respect to the requests described in paragraphs 2b. and 2h., above, such records were available for inspection at the respondent superintendent’s office, and that copies would be provided at a cost of fifty cents per page; and no records existed that were responsive to the request described in paragraph 2j., above; and
c. with respect to the requested records concerning the complainant’s child’s educational record, such records could be made available to the complainant under FERPA if the complainant completed a written consent form specifying the records to be disclosed as well as the party to whom the records would be disclosed.
4. By letter dated October 7, 1999 and filed October 8, 1999, the complainant appealed to the Commission, alleging that the respondents had denied access to the requested records.
5. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212 [formerly section 1-15].
6. It is found that to the extent records exist that are responsive to the complainant’s request, such records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
7. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that:
[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
8. Sections 1-210(b)(11) and 1-210(b)(17), G.S., [formerly §§1-19(b)(11) and 1-19(b)(17), G.S., respectively], permit the nondisclosure of:
(11) names or addresses of students enrolled in any public school or college without the consent of … a parent or guardian of each such student who is younger than eighteen years of age … ; … (17) educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.
9. 20 U.S.C. §1232g(b)(2)(A) provides:
“No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless—(A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents….”
10. 20 U.S.C. §1232g(a)(1)(A) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
11. “Education records” are defined at 20 U.S.C. §1232g(a)(4)(A) as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
12. On November 23, 1999, the complainant filed a “Motion to Reconsider Admission of Hearsay Evidence” with the Commission asking the undersigned-hearing officer to strike the admission of Respondents’ Exhibit 2 on the grounds that it was hearsay, no proper foundation had been laid for its admission, it was not best evidence and its admission may be an indication of bias. The complainant also requested that certain after-filed exhibits, specifically, affidavits of principal Adamson and the complainant, should also be stricken.
13. The motion described in paragraph 12, above, is hereby denied pursuant to §4-178, G.S., it being found that the evidence contained in such exhibits is relevant and not overly prejudicial to the complainant. However, due to the undersigned-hearing officer’s concerns about the conflicting information contained in such exhibits, the lack of availability of the witnesses who prepared such exhibits for cross-examination, and the complainant’s attacks on the exhibits in question, such exhibits have not been relied upon as a basis for any of the decisions set forth herein.
14. It is found that Eric Jones is the complainant’s son, that the requests identified in paragraphs 2a., 2i. and 2k., above, relate to Eric Jones’ educational file, and that to the extent records exist responsive to such requests, they would be contained in such file.
15. It is found that Eric Jones’ educational file consists of
“education records” within the meaning of 20 U.S.C. §1232g(a)(4)(A).
16. It is found that following receipt by the complainant’s attorney of the respondent superintendent’s letter described in paragraph 3, above, the complainant, at his attorney’s direction, personally visited principal Adamson’s office on October 5, 1999, completed a disclosure consent form supplied by the principal, and was provided with a copy of his son’s educational file on that date, or on October 7, 1999 during a subsequent visit, with the exception of his medical records.
17. The respondents maintain that with the exception of the medical records, which they claim the complainant did not want, the complainant was provided with his son’s entire educational file. The complainant maintains that beyond the medical records, the file was incomplete, since it did not include certain documents that the complainant had provided to the school for inclusion therein.
18. With regard to the medical records, there is contradictory evidence presented whether the complainant indicated to the principal that he did not desire access to the medical records or whether the principal said he would provide them at a later date, after there had been an opportunity to copy them. Because the respondents expressed at the hearings on this matter that they are willing to provide access to the medical records if the complainant desires such access, the facts are found in favor of the respondents and it is concluded that the respondents did not deny access to the medical records in question.
19. With regard to whether the respondents failed to provide additional records maintained in Eric Jones’ educational file, the complainant was not able to prove that other records were, or should have been, present in the file, other than certain records he provided to the respondents. Therefore, in the absence of evidence to the contrary, it is found that the respondents provided the complainant with his son’s entire educational file, with the exception of the medical records, as described in paragraphs 17 and 18, above.
20. With regard to whether the respondents’ provision of access to the complainant’s son’s educational file was prompt, the respondents first maintain that the complainant’s request on October 5, 1999 was separate from his attorney’s request on September 21, 1999, and that the Commission only has jurisdiction over the attorney’s request. The respondents further maintain that they acted appropriately with respect to the attorney’s request, because pursuant to the provisions of FERPA, a specific authorization and consent form was required before any access to Eric Jones’ educational file could be provided.
21. It is found however, that the September 21, 1999 request made by the complainant’s attorney, and the October 5, 1999 request made to the principal by the complainant, constitute one continuous request and that the Commission therefore has jurisdiction over both. It is further found however, that the complainant was provided with access to his son’s educational file either on October 5 or October 7, 1999, prior to the filing of the complaint in this matter; and that although the Commission finds the process employed by the respondents to be overly technical and bureaucratic, it was not inappropriate, given the provisions of §§1-210(b)(11), 1-210(b)(17), G.S., [formerly §§1-19(b)(11) and 1-19(b)(17), G.S., respectively], 20 U.S.C. 1232g(b)(2)(A) and 20 U.S.C. 1232g(a)(1)(A), G.S.
22. It is therefore concluded with respect to the requests identified in paragraphs 2a., 2i., and 2k., above, that the respondents did not violate the promptness provisions of §§1-210(a) and 1-212(a), G.S., [formerly §§1-19(a) and 1-15(a), G.S., respectively].
23. With respect to the requests identified in paragraphs 2e., 2f., and 2g., above, the respondents initially indicated that if such records existed, they would also be contained in Eric Jones’ educational file. However, the respondents then indicated at the hearings on this matter that no records exist responsive to the requests identified in paragraphs 2e., 2f., and 2g., above. Therefore, the Commission concludes that the respondents did not violate the provisions of §§1-210(a), and 1-212(a), G.S., [formerly §§1-19(a) and 1-15(a), G.S., respectively] with respect to the requests set forth in paragraphs 2e., 2f., and 2g., above.
24. It is found that with respect to the requests identified in paragraphs 2b. and 2h. (which request was duplicative of 2b.), above, the respondents provided the complainant with a copy of the New Hartford School district’s policy on promotion and retention either on October 5 or October 7, 1999; and that with respect to the request identified in paragraph 2j., above, the respondent superintendent informed the complainant in his September 29, 1999 letter, that no records exist responsive to such request. At the November 1, 1999 hearing on this matter, the complainant indicated that he wished to withdraw those portions of the complaint concerning the requests identified in paragraphs 2b., 2h., and 2j., above.
25. The complainant, however, attempted to resurrect his claims with respect to paragraphs 2b. and 2h., above, in his November 30, 1999 brief to the Commission, based upon the affidavit submitted by the respondent superintendent as an after-filed exhibit, claiming that the affidavit revealed that the respondents had not provided him with all responsive records to such requests. The complainant cannot however, resurrect claims that he withdrew at the hearing on this matter. Further, as indicated in paragraph 13, above, due in part to the complainant’s attacks on the affidavit in question, such affidavit has not been relied upon as a basis for any of the decisions set forth herein.
26. It is therefore concluded that the respondents did not violate the provisions of §§1-210(a), and 1-212(a), G.S. [formerly §§1-19(a) and 1-15(a), G.S., respectively], with respect to the requests identified in paragraphs 2b., 2h. or 2j., above.
27. With respect to the requests described in paragraphs 2c., 2d. and 2l., above, counsel for the respondents informed the complainant in a letter dated October 27, 1999, that although the complainant had indicated that student identifying information could be redacted, the respondents were concerned that disclosure of any information contained in the education records of other children would be so specific to a child’s situation, that the child’s identity might not be protected. However, the respondents’ counsel then indicated that no records existed responsive to the complainant’s requests in paragraphs 2c. and 2d., above. With respect to the request described in paragraph 2l., above, the respondents asked for clarification concerning the scope of the complainant’s request, and inquired whether he wished to view the entire educational files of the students who had been retained, absent personally identifiable information.
28. At the November 1, 1999 hearing on this matter, the complainant clarified that his requests in both 2c. and 2l., above, were limited to records containing the reasons why students were retained in the academic years 1997-1998 and 1998-1999 or records “relating to” the reasons why students had been retained in such years. The respondent superintendent then indicated that he believed that no such records existed responsive to the complainant’s specific request but that he would be willing to conduct a further review of the files maintained by New Hartford Public Schools.
29. At the November 8, 1999 hearing on this matter, the respondent superintendent indicated that he had conducted a search of the files maintained by New Hartford Public Schools, that he had personally reviewed four of the eight educational files of the students who had been retained and that, other than a couple of parent letters, he had not located any records responsive to the complainant’s requests in paragraphs 2c. and 2l., above, as clarified in paragraph 28, above.
30. Also at the November 8, 1999 hearing on this matter, the respondents offered to provide the undersigned-hearing officer with copies of the eight student files (with identifying information redacted), for in camera inspection, for the purpose of determining whether such files contain any records responsive to the complainant’s requests in paragraphs 2c. and 2l., above. The respondents continued to express their concern however, that disclosure of any information in the students’ educational files might result in identifying the students who had been retained, due to the small number of students retained and the small size of the school system as a whole.
31. It is found that there are approximately six hundred and fifty students enrolled in the New Hartford Public School system and that during the years requested, eight students in addition to the complainant’s son, were retained.
32. The respondents submitted the eight student educational files for in camera inspection on November 22, 1999.
33. After a thorough review of the student educational files submitted for in camera inspection, it is found that certain portions of the records included in such files contain information “related to” the reasons for retention that is responsive to the complainant’s requests in paragraphs 2c. and 2l., above, as clarified in paragraph 28, above.
34. However, after careful consideration of the arguments put forth by both the complainant and the respondents, as well as the specific contents of the educational files, it is found that given the relatively small number of students enrolled in the New Hartford school system and the descript nature of the information that is responsive to the complainant’s requests, disclosure of any information in such files could indirectly result in the disclosure of the identities of the students who were retained.
35. Based upon the finding in paragraph 34, above, it is concluded that the information contained in the eight student educational files submitted for in camera inspection that is responsive to the complainant’s requests is not subject to disclosure pursuant to the provisions of §§1-210(b)(11), G.S. [formerly 1-19(b)(11), G.S.].
36. Although the Commission is troubled that the respondents failed to acknowledge that the student educational files do contain information that is responsive to the complainant’s requests in paragraphs 2c. and 2l., above, it is concluded that the respondents did not violate the provisions of §§1-210(a) and 1-212(a), G.S. [formerly §§1-19(a) and 1-15(a), G.S., respectively], by failing to provide the complainant with copies of those portions of the records containing such information.
37. With respect to the request described in paragraph 2d., it is found that since no records exist that are responsive to such request, the respondents did not violate the provisions of §§1-210(a) and 1-212(a), G.S., [formerly §§1-19(a) and 1-15(a), G.S., respectively], with respect thereto.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. Since the respondents expressed their willingness to provide the complainant with his son’s medical records at the hearings on this matter, it is expected that the respondents shall forthwith provide the complainant with such copies if they have not already done so.
Approved by Order of the Freedom of Information Commission at its regular meeting of
January 26, 2000.
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Melanie R. Balfour
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Michael Jones
c/o Atty. W. David Zitzkat
999 Asylum Avenue, Suite 502
Hartford, CT 06105
Superintendent of Schools, New Hartford Public Schools; and New Hartford Public Schools
c/o Atty. Anne H. Littlefield
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-436FD/mrb/01/28/00