Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
As an assistant principal responsible for special education matters at my school, I deal directly with parents all the time. Most parents are lovely, and we establish a collaborative and trusting relationship as we work together on behalf of their children. But that is not always the case.
Some parents can be antagonistic, and I am not quick on my feet. To be ready for issues that might come up at a PPT meeting with hostile parents, I often prepare notes for myself on my laptop with potential questions and potential answers about the child’s program. Sometimes I even remind myself of parental quirks to avoid conflict where possible.
Anticipating a challenging PPT, I followed this practice last week, and, as I expected, the parent was in attack mode right from the start of the meeting. I opened my laptop and calmly referred to my notes, doing my best to answer the parent’s questions. However, the parent quickly noticed that I was reading from my laptop and demanded to see what I was reading. I politely explained that I was simply referring to my personal notes and that I would not be sharing them with him. The parent scoffed and claimed that records that I maintain on my computer cannot be “notes,” stating further, “We will see about that when I make an FOIA complaint!”
Do I have to provide my notes to this parent in response to an FOIA request?
A Personal Question
Dear Personal:
There are two mechanisms by which parents can obtain school records regarding their children. However, Legal Mailbag thinks that you are safe here in keeping your notes confidential.
First, the parent has the right under the Freedom of Information Act to obtain records related to his child. Under the Freedom of Information Act, records about school district operation are all public records, but some such records are exempt from disclosure. Conn. Gen. Stat. § 1-210(b)(17) is relevant here, and it exempts “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act [FERPA], 20 USC 1232g” from disclosure. Accordingly, personally identifiable student information contained in records you and your district maintain is confidential – but with a big exception. Under FERPA, parents have the right to obtain school district records about their own children, and thus this exemption does not apply to the parent of the child to which the records relate. However, another exemption will apply to permit you to keep confidential the notes that you prepared for the PPT.
Conn. Gen. Stat. § 1-210(b)(1) exempts “preliminary drafts or notes” from disclosure with the proviso that “the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure,” which is a decision that you can make. As long as you just use the notes that you prepare for your personal reference and do not share them with others, you can keep your notes confidential under this exemption. This provision was included in the Freedom of Information Act when it was enacted fifty years ago, and laptops were certainly not contemplated at that time. However, now we can maintain “preliminary drafts or notes” on a laptop as well as on a pad of paper, and Legal Mailbag predicts that the Freedom of Information Commission would dismiss a complaint by the parent seeking access to your personal notes whether you maintain them on paper or on your laptop.
The second means by which parents may seek records relating to their children is FERPA, as noted above. FERPA defines “education records” to which parents (or students themselves when they reach the age of 18) have access as “records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.” However, FERPA expressly excludes the following from this definition of “education records”: “Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.” 34 Code of Federal Regulations § 99.3. Given that you used the notes that you prepared here as a memory aid and did not share them with others, Legal Mailbag concludes that your notes can be considered a “sole possession record” that you need not share with the parent under FERPA.