FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Mary Baltimore,  
  Complainant  
  against   Docket #FIC 2004-551

Superintendent of Schools,

Cromwell Public Schools,

 
  Respondent September 14, 2005
       

 

            The above-captioned matter was heard as a contested case on May 12, 2005, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of 1-200(1)(A), G.S.

 

2.  It is found that, by letters dated November 11 and 18, 2004, the complainant made a request to the respondent for copies of a videotape and all other records concerning an incident in the Cromwell High School cafeteria on October 21, 2004 between her daughter, Deanna Baltimore, and another student. 

 

3.  By letter dated November 19, 2004, counsel for the respondent declined to provide copies of the videotape and the other requested records, stating that such records “contain personally identifiable information and are confidential in accordance with the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. 1232g, Conn. Gen. Stat. 1-210(17) [sic].”

 

4.  By letter dated December 6, 2004 and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on December 9, 2004, counsel for the complainant appealed to the Commission, alleging that the respondent’s failure to provide the videotape violated the Freedom of Information Act (“FOIA”), and specifically that 20 U.S.C. 1232g permitted the complainant, in her capacity as a parent of Deanna Baltimore, to obtain educational records.

 

5.  It is found that the scope of the complainant’s request for records, by letters dated November 11 and 18, 2004, was broader than the complaint to the Commission, which alleged a violation exclusively with reference to the videotape. 

 

6.  At the hearing, the hearing officer directed the respondent to submit the videotape and the other requested written records for in camera inspection. Testimony indicated that the other written records included: 1) a referral letter for each of two students; 2) a statement received from each of two students; and 3) a discipline letter to the parents of each of two students.

 

7.  Following the hearing, pursuant to the Regulations of Connecticut State Agencies 1-21j-38, the hearing officer accepted into evidence an agreement between the parties, wherein the complainant acknowledged receipt of eight pages, and the respondent stated that these records comprise “all written documentation concerning the October 21 incident”. The parties agreed that the videotape is the only record that remains at issue in this case (the “requested record” or sometimes the “record”).

 

8.  It is found that the Cromwell public schools purchased a “CCTV (Closed Circuit Television) DVR (Digital Video Recorder) system from Nuvico” (hereinafter the “video recorder”), in order “to video tape student and/or employee conduct in defined areas of the school building.” The Cromwell public schools also have the capability of preserving video images “by downloading them from the temporary storage of the Nuvico DVR to a CD-ROM disk.”

 

9.  Pursuant to the directive set forth at paragraph 6, above, the respondent submitted two CD-ROM disks for an in camera inspection, which has now been performed.  For identification purposes, the in camera records have been designated IC 2004-551 CD-ROM Disk 1 and Disk 2.

 

10.  At the hearing, the complainant more specifically contended that, pursuant to 20 U.S.C. 1232g(a)(1)(A), she has the right to the portion of a record that pertains to her child, even if other children are also shown. She relied on Deborah Maynard v. Superintendent, Voluntown School District, Docket #FIC 1998-023. At the hearing, the complainant also contended that the respondent violated 1-211(b) and (c), G.S., by purchasing a video recorder that renders “video redaction” impossible.

 

11.  It is also found that the Cromwell High School cafeteria was equipped with a video recorder, which was in operation on October 21, 2004.  Based upon testimony at the hearing in this matter, the download from the cafeteria video recorder for October 21, 2004 shows about 100 to 120 students throughout the whole video. Deanna Baltimore is never seen by herself, with no other student around her. Neither the respondent nor the complainant made any attempt to gain the consent of the parents of the 100 to 120 students who are shown in the download from the cafeteria video recorder.     

 

12.  It is found that it is “impossible to alter video images” of the video recorder, which its manufacturer, “Nuvico” has rendered “intentionally un-editable” utilizing a proprietary format. The purpose of the Cromwell public schools in acquiring this equipment was to render “video redaction” impossible and to ensure that “footage can always be considered legitimate evidence.” Moreover, there was no evidence that the Cromwell High School had previously had any video system that did allow for redacting videotape images.

 

13.  Finally, it is found that agents of the respondent did meet with the complainant and provided her orally with information concerning her daughter, Deanna Baltimore, from the requested record.

 

14.  Section 1-210(a), G.S., states 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…. (emphasis added) 

 

15.  Section 1-211(a), G.S., states in relevant part:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. (emphasis added) 

 

16.  Section 1-211(b), G.S., states in relevant part:

 

Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under the Freedom of Information Act to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions. (emphasis added)

17.  Section 1-211(c), G.S., states in relevant part:

 

On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. (emphasis added)   

 

18.  The Family Educational Rights and Privacy Act, 20 U.S.C. 1232g(b)(2), provides in relevant part that:

 

[n]o 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 students 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 . . . .” (emphasis added) 

 

19.  Also, 20 U.S.C. 1232g(a)(1)(A), provides in relevant part that:

 

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. (emphasis added) 

 

 20.  Administrative notice was taken of “Letter re: Berkeley County School District”, 7 FERPA Answer Book 40, 104 LRP Publications 44490 (February 10, 2004) (hereinafter “Berkeley Letter”). The Family Policy Compliance Office, a unit administering FERPA in the U.S. Department of Education, issued the Berkeley Letter. It stated in relevant part:

 

If education records of a student contain information on more than one student, the parent requesting access to education records has the right to inspect and review, or be informed of, only the information in the record directly related to his or her child…. If, on the other hand, another student is pictured fighting in the videotape, you would not have the right to inspect and review that portion of the videotape. (emphasis added)   

 

21.  It is concluded that 20 U.S.C. 1232g(a)(1)(A) is “federal law”, as that term is used by 1-210(a), G.S., set forth at paragraph 14, above. This federal law unambiguously establishes that a parent does not have the right to records which include or have information about students other than their own child. The Berkeley Letter reaffirms this principle in the specific context of a videotape and supercedes the earlier decision in Deborah Maynard v. Superintendent, Voluntown School District, Docket #FIC 1998-023. See also U.S. v. Miami University, 294 F. 3rd 797 (2002).   

 

22. Accordingly, it is concluded that the requested record is exempt from mandatory disclosure, pursuant to 1-210(a), G.S., and that the respondent did not violate 1-211(a), G.S., when he declined to provide the complainant with a copy of the requested record.

 

23.  Based upon the findings at paragraph 12, above, it is concluded that, in contracting to purchase the video recorder, the Cromwell public schools did not impair existing FOIA rights. It is also concluded that, in acquiring the video recorder, the respondent did consider whether the equipment adequately provides for the rights of the public under the FOIA. It is finally concluded that the respondent did not violate 1-211(b) or 1-211(c), G.S., when it acquired the Nuvico video recorder.

 

            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.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 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:

 

Mary Baltimore

c/o Daniel H. Kennedy, III, Esq.

Heneghan, Kennedy & Doyle, LLC

West Hill Center

21 New Britain Avenue

Rocky Hill, CT 06067-1100

 

Superintendent of Schools,

Cromwell Public Schools

c/o Craig S. Meuser, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-551FD/paj/9/15/2005