FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on July 21, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondent submitted for in camera inspection the Stipulations described in paragraphs 3 and 7 of the findings, below, that are the subject of this complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed January 18, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her December 17, 2004 request for access to public records.

 

3.  It is found that, by letter dated December 17, 2004,  the complainant requested from the respondent access to inspect certain records, including, among other records no longer at issue, “expulsion hearing minutes for all expulsions conducted from July 1, 2004 to present,” and “all Decisions of the Impartial Hearing Officer, including any and all stipulations/attachments and all materials that are referenced as part of the Order from September 1, 2004 until present.”

 

4.  It is found that the respondent by letter dated December 28, 2004 denied the complainant’s request.

 

5.  It is found that the respondent, through a hearing officer, conducts hearings on whether to expel students.  Such hearings are commenced in open session and then conducted primarily in executive session.

 

6.  It is found that the hearing officer issues a decision called the “Decision of the Impartial Hearing Board”  (the “Decision”).

 

7.  It is found that, if the respondent and the family of the student reach a stipulated settlement (the “Stipulation”), that Stipulation, if approved by the hearing officer, is attached to and made a part of the Decision.

 

8.  It is found that the Decisions and Stipulations in unredacted form recite the specific facts and conclusions of each case, including the name, age, parents, birth date and school attended by the student; the student behavior or incident that is the subject of the hearing, including the specific time and location of the incident; the governing law; the specific dates and conditions of expulsion, if any; and any conditions precedent to the student’s return to school.

 

9.  It is found that the respondent denied the complainant access to two types of records: the Stipulations for the requested time period, and the minutes of the portion of the expulsion hearings conducted in open session.

 

10.  It is found that the respondent expels between forty and eighty students in a typical year.

 

11.  It is found that the respondent has in the past provided copies of the Decisions and Stipulations to the complainant, redacting the student’s and parent’s name and other identifying information, including the date of the commencement of the expulsion, the specific time and location of the incident that led to the expulsion, but not redacting the length of the expulsion, or the general facts of the incident that led to expulsion, such as the possession of a knife on school grounds, or the arrest for the possession of marijuana off campus.

 

12.  It is found that the respondent began a new policy of denying requests for Decisions and Stipulations in their entirety, based on its understanding of the relevant law, and based in part on informal oral advice received from Commission staff.

 

13.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

14.  Section 1-210(a), G.S., provides in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212….   

 

15.  It is concluded that the Stipulations and minutes of the public portions of expulsion hearings are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

16. The respondent contends that the Stipulations are exempt from disclosure pursuant to §1-210(b)(17), G.S., which provides that disclosure is not required of “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act [“FERPA”], 20 USC 1232g ….”

 

17.  Section 1232g(b)(1) of Title 20 provides that, with certain exceptions:

 

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization ….

 

18.  The regulation at 34 CFR §99.3 defines “personally identifiable information” to include, but not be limited to:

 

a.       The student’s name;

b.      The name of the student’s parent or other family member;

c.       The address of the student or student’s family;

d.      A personal identifier, such as the student’s social security number or student number;

e.       A list of personal characteristics that would make the student’s identity easily traceable; or

f.        Other information that would make the student’s identity easily traceable.

 

19.  The complainant does not contest the respondent’s redaction of the student’s name, the names of the student’s family members, the address of the student or the student’s family, any personal identifiers, or any list of personal characteristics that would make the student’s identity easily traceable.  It is found that this information has previously been redacted by the respondent from Decisions and Stipulations that have been made public.

 

20.  The issue presented in this case is whether the remaining information contained in the Stipulations about the student’s age, the underlying incident that led to expulsion, and the period, terms and conditions of the expulsion, constitute “other information that would make the student’s identity easily traceable” within the meaning of 34 CFR §99.3.

 

21.  The respondent contends that the facts surrounding student expulsions, including the underlying incident, the absence of the student from class, the presence of parents in the school, and so forth, are so well known in the school community of teachers, students and administrators, that disclosure of even a redacted version of the Stipulation would identify the expelled student.

 

22.  It is found, however, that no student’s identity has ever been traced from information made public in a Decision or Stipulation redacted by the respondent.

 

23.  In The State ex rel. The Miami Student et al. v. Miami University et al., 79 Ohio St. 3d 168, 172, 680 N.E.2d 956, 959 (1997), the Ohio Court of Appeals observed that the exact date and time of an alleged incident must be redacted from records of student disciplinary proceedings under 20 U.S.C. §1232g, because it constitutes information that may lead to the identity of the student.  That court also observed that “the general location of the incident, the age and sex of the student (which does not identify the student), the nature of the offense, and the type of disciplinary penalty imposed” did not constitute information that may lead to the identity of the student.  Id.

 

24.  It is found that the respondent has previously redacted the exact date and time of an incident leading to expulsion, the date of the beginning of the expulsion but not its duration, the student’s date of birth but not age, and the student’s school but not the general location of the incident.  It is found that the respondent has not previously redacted the nature of the offense or the type of disciplinary penalty imposed.

 

25.  It is concluded that the respondent’s redaction policy prior to the instant case was consistent with FERPA requirements.

 

26.  Nonetheless, the respondent contends that the Commission historically has afforded boards of education broad latitude in protecting student records from disclosure, and that redaction is insufficient to protect the disclosure of personally identifiable information regarding students.  In support of its argument, the respondent cites the cases described in paragraphs 27 through 30 of the findings, below.

 

27.  In Hartford v. Freedom of Information Commission, 18 Conn. L. Rptr. 507 Superior Court, J.D. Hartford, Docket No. CV 950555646 (Maloney, J.) the Superior Court concluded that the names, addresses and telephone numbers of students’ parents were exempt from disclosure pursuant to §1-210(b)(11), G.S., which allows the nondisclosure of students’ names and addresses.  However, the complainant is not seeking, and the respondent has previously redacted, the names, addresses and telephone numbers of students and parents from the Decisions and Stipulations.  Hartford v. FOIC, therefore, has little bearing on this case.

 

28.  In Abraham v. University of Connecticut, Docket #FIC 1997-093, the Commission concluded that even with the redaction of the names of two University of Connecticut students, Kirkland King and Ricky Moore, the disclosure of a report to the National Collegiate Athletic Association (“NCAA”) would constitute easily identifiably, indirect disclosure.   However, the Commission takes administrative notice of the fact that the names and identities of the two students in that case, as well as the NCAA rules violations with which they were charged, were already well known, not just to the Norwich Bulletin, which had requested the records, but to the public at large.  Thus, the Commission concluded in that case that the disclosure of the requested records with the redaction of the two students’ names would constitute easily identifiable, indirect disclosure.  These factual circumstances are not present in this case, where neither the identities nor the offenses of the expelled students are generally known to the public, and the respondent is unaware of any time that the disclosure of a redacted expulsion Decision or Stipulation has led to the identification of a student.

 

29.  In Joan Coe v. Superintendent, Simsbury Public Schools, Docket #FIC 2000-068, the Commission concluded that the disclosure of student athlete injury reports was prohibited by 20 U.S.C. §1232g because some athletic teams have small numbers, and to divulge information as to the particular sport involved, coupled with the date and time of the injury, as well as the name of the coach, would be to divulge information so specific to a student’s situation that such student’s identity might not be protected.  It is found, however, that the information contained in the Decisions and Stipulations in this case, in the form previously redacted by the respondent, does not divulge even the school the student attends, much less a sport played, does not divulge the specific date and time of the incident that lead to expulsion, and does not divulge school personnel (such as a coach or teacher) that could lead to the identity of the student. 

 

30.  In Thomas E. Lee v. Board of Education, Trumbull Public Schools, Docket #FIC 2000-128, the Commission concluded that student expulsion hearings are not subject to the open meeting requirements set forth at §1-225(a), G.S., an issue not raised in this case.  Moreover, in Lee v. Trumbull, above, the Commission observed that only some of the information contained in the records of the expulsion hearings would disclose personally identifiable information about students—that is, information that was “unique and very specific to only a few students,” and “inextricably tied to a particular event.”  It is found that the information contained in the redacted Decisions and Stipulations is not unique to a very few students, and is not inextricably tied to a particular event, since the date and location of the incidents for which the students were expelled is not specified in the redacted Decisions and Stipulations.  Rather, it is found that the Decisions and Stipulations, in redacted form, only recite the age of the student in years, the behavior for which the student was expelled, such as the possession of a knife or drug, the duration of the expulsion, and the conditions, if any, of the expulsion and of any early return to school.

 

31.  It is concluded that every case of student records presents a different set of circumstances, and that none of the specific records or circumstances described in paragraphs 27 through 30 of the findings, above, are so similar to the records and circumstances of this case as to be controlling.

 

32.  It is concluded therefore that the respondent violated §1-210(a), G.S., by failing to provide access to the Stipulations in the redacted form previously made available to the public.

 

33.  With respect to the complainant’s allegation that she was not provided minutes of the public portion of the expulsion hearings, the respondent offered no defense to this allegation. 

 

34.  Section 1-225(a), G.S., provides that the minutes of the meetings of public agencies “shall be available for public inspection within seven days of the session to which they refer.”

 

35.  It is concluded that the respondent violated §§1-225(a) and 1-210(a), G.S., by failing to provide access to the requested minutes.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent shall forthwith provide the complainant with access to the requested Stipulations in the redacted form previously made available to the complainant.

 

2.  The respondent shall forthwith provide the complainant with access to the requested minutes of public portion of the expulsion hearings.  If no such minutes exist, the respondent shall forthwith create them.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2005.

 

________________________________

Petrea A. Jones

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:

 

Nancy Rossi

12 Robin Road

West Haven, CT 06516

 

Board of Education,

West Haven Public Schools

c/o Floyd J. Dugas, Esq.

75 Broad Street

Milford, CT 06460

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-018FD/paj/12/20/2005