As the premier tool of the information age, technology is transforming how we learn, work, play, and communicate. It’s also changing the nature of public-record requests, setting up potential legal challenges that few schools and districts are equipped to handle.
In recent months, for example, news outlets in Charlotte, N.C., and around the nation have asked for the security tapes from school buses and high school surveillance cameras, electronic copies of databases containing confidential student records, administrators’ and school board members’ eMail messages, and more.
In one state, news outlets encouraged teens to smuggle video recorders into school and then paid them for the tapes, turning students into stringers for the local media. The media got their story, but at what cost to student privacy and school climate?
While the Federal Educational Right to Privacy Act (FERPA) offers some protection for students, the case law simply isn’t clear on whether any or all of the above examples are public records. And, while most school employees have more legal protections than students when it comes to safeguarding their privacy, internet-based criminal background checks and other information services are putting confidential personnel data at risk as well.
So, what’s a beleaguered school leader to do? Besides staying in close contact with your district lawyer and securing additional insurance coverage, you need an in-depth understanding of the public-records laws governing your state.
Generally speaking, if a record exists and it doesn’t include confidential personnel, legal, or student information, it’s public and you need to share it in a timely fashion. If it doesn’t exist, you don’t have to create it just because a reporter asks for it. And, while most reporters these days prefer electronic formats, putting your records on disk or sending data via eMail isn’t mandatory as long as you provide the information.
“While it’s certainly in our best interest to help reporters whenever we can, we are not required to do their research for them,” says Barry Gaskins, APR, president of the National School Public Relations Association. “Before you start generating reports just for reporters, you really need to look at the staff time involved. In some ways, it’s almost a reverse abuse of taxpayer dollars if you spend resources doing a report that could go toward doing our real job, which is educating children.”
As computer-assisted reporting gains a stronger foothold in American journalism, however, more and more school leaders find themselves barraged for requests for eMail messages, hard drives, videotapes, faxes, Palm Pilot meeting notes, and other “public records” that didn’t even exist a mere 10 years ago.
Members of the general public aren’t far behind, as parents and other “concerned citizens” pepper principals, public information officers, and superintendents with data requests.
As a result, public information officers and others are scrambling to scrub confidential data from databases and update school board policies that were written prior to the advent of the internet and other new media.
Because most states don’t allow schools to ask why a record is being requested, school leaders may inadvertently hand over information to marketing research firms and vendors who want to track the buying habits of our students, parents, and staff or sell them new products. (And you thought protecting your students from “cookies” implanted into free software was enough!)
Not surprisingly, as parents get savvier about protecting their children’s privacy and as concerns about identity theft grow, more parents are asking that photos, eMail and mailing addresses, phone numbers, videotape, and other identifying information not be shared on the web, via databases, or through district publications, cable broadcasts, and other communication channels.
That is why some school districts are no longer including their students’ addresses, zip codes, and phone numbers as part of commonly shared “directory information.” Others are putting additional safeguards in place to ensure that confidential information and data not included in the public-record request have been deleted from the file.
“We’re getting an increasing number of parents who do not want their children’s names, photographs, or directory information shared with commercial people,” says Gay Campbell, APR, director of communications for the Everett School District in Washington, who notes that one elementary school in her district had 252 families (out of approximately 500) request that their children’s photographs not be used in any district publications. “If you don’t have a way to note these requests in your student database, you could easily violate FERPA and not even know it.”
Typically, surveillance tapes on school buses and on school campuses were designed for short-term use for internal purposes only and may contain information about disciplinary issues and other legally protected student records. While this approach might pass the “common-sense test,” it might not pass legal muster.
“The case law on this subject is really unclear at this point in time,” says Maurice Green, legal counsel for the Charlotte-Mecklenburg Board of Education. With technology surging ahead of the law, as well as professional journalism and public-relations ethics, school leaders need to keep a close eye on current court cases. We also need to avoid setting precedents, such as creating records upon request by reporters, that may come back to haunt us later.
“I would hate to think about how many hours it would take to screen surveillance tapes for confidential information and to edit out the students whose parents have gone on record saying they do not want their child’s photo made public,” says Campbell, noting that a recent court case may have opened the door to parents to sue districts for FERPA violations. “The potential for error would be extremely high, and the legal ramifications for the district could be frightening.”