“I CAN’T BELIEVE HE JUST SAID THAT!”

BOARD MEMBER CONFIDENTIALITY

Presented by:

Nasha Y. Torrez, Esq.

500 Marquette Ave., N.W.Suite 1360

Albuquerque, NM 87102(505) 243-6864

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PRESENTATION OVERVIEW

FERPA Legal Overview Your handout has more info!

IPRA Legal Overview How to deal with the Media - Tips

Your handout has more info!

Scenarios and Practical Tips Don’t forget the law. Media tips.

Questions & Answers

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FERPA

Family Education Rights and Privacy Act

WHAT IS THE PURPOSE OF FERPA?

To protect the privacy of student records by preventing unauthorized access by third parties. See 34 C.F.R. § 99.1 (2010).

TO WHOM DOES FERPA APPLY?

All schools receiving funds through a program of the U.S. Dept.Ed. See 34 C.F.R. § 99.1 (2010).

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WHAT IS “PERSONALLY IDENTIFIABLE STUDENT INFORMATION” CONTAINED IN AN

“EDUCATION RECORD”?

Education Record = directly related to a student, and maintained by the District or by a party acting for the District.

Example: diagnostician working for the District under contract.

Record consists of information recorded in : handwriting, print, computer media, video or audio tape.

See 34 C.F.R. § 99.3 (2010).

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“PERSONALLY IDENTIFIABLE” INFORMATION

student’s name; name of the student’s parent or other family

member; address of the student or student’s family; a personal identifier, such as the student’s

social security number or student number; list of personal characteristics that would

make the student’s identity easily traceable; or

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

See 34 C.F.R. § 99.3 (2010).

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WHAT DOES IT MEAN TO “DISCLOSE” AN EDUCATION RECORD?

Very broad definition.

“Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means.”

See 34 C.F.R. § 99.3 (2010).

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DOES CASUAL CONVERSATION COUNT?

Yes.

Oral disclosure of personally identifiable student information contained in an education record is governed by FERPA.

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TEACHER’S CLASSROOM REMARKS VIOLATED FERPA

A frustrated teacher tells a student with disabilities to leave the class because of his bad behavior.

In front of students, she says, “I hate that kid…I don’t care if he is disabled…I don’t like him…I don’t care if he has …It’s his problem and not mine, and I don’t have to deal with it.”

The teacher’s comments violated FERPA because the teacher improperly revealed the disability of a student to the class.

Letter to Wilhelm, Family Policy Compliance Office 01/28/98.

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WHEN PRIOR CONSENT IS NOT REQUIRED: DIRECTORY INFORMATION

FERPA Exception to prior written consent: disclosure of information the school district has designated as directory information. See 34 C.F.R. § 99.31 (2010).

District officials may disclose directory information if it has given public notice to parents and given the parent the opportunity to opt out. See 34 C.F.R. § 99.37 (2010).

Directory Information includes: Student’s name Address, telephone listing, email address Photograph Date/place of birth Dates of attendance Participation in officially recognized activities and sports.

See 34 C.F.R. § 99.3 (2010).

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WHEN IS PRIOR CONSENT NOT REQUIRED?

The FERPA regulations provide several exceptions to the parental consent requirement: 

disclosure to comply with a judicial order or lawfully issued subpoena; 

disclosure in connection with a health or safety emergency;

See 34 C.F.R. § 99.31 (2010).

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DISCLOSING INFORMATION IN HEALTH AND SAFETY EMERGENCIES

Before releasing an education record without consent under this exception, school districts should make sure they can articulate a reasonable (and believable) explanation as to:

why the situation qualified as an emergency, and

why the party to whom the information was disclosed needed the information to protect the health and safety of the student or others.

An emergency is usually a sudden or unexpected happening with pressing necessity or calling for immediate action without time for full deliberation.

See 34 C.F.R. § 99.36 (2010).

NARROW

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HEALTH AND SAFETY EXAMPLES:

Narrow and about immediacy:

Student running through hall with a gun. Student with highly contagious disease at

school.

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THERE’S BEEN A CRIME IN OUR TOWN ALLEGEDLY INVOLVING ONE OF OUR STUDENTS. THE DEPUTY WANTS TO REVIEW THE STUDENT’S DISCIPLINE RECORDS. CAN WE LET HIM?  The deputy can obtain access by: (1) obtain written

consent of the parent or eligible student; or (2) present the district with a court order or subpoena for the student’s records. The only other exception which could apply is if immediate access to the records is necessary due to an emergency which threatens health or safety. “[t]his exception is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a student’s education records.” Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools (Family Policy Compliance Office, October 2007):

http://www.ed.gov/policy/gen/guid/fpco/brochures/elsec.html. NOTE: You can not tell the deputy what is in the records.

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INSPECTION OF PUBLIC RECORDS ACT(“IPRA”)

NMSA 1978 § 14-2-1 (2011)

NM Attorney General Guide on IPRA

http://www.nmag.gov/

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IPRA LEGAL OVERVIEW

PUBLIC RECORD:

“any document, tape, or other material, regardless of form, that is used, created, received, maintained or held by or on behalf of a public body, and is related to public business.”

Pretty Broad!

NMSA 1978 § 14-2-6(E) (2011).

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IPRA EXCEPTIONS

“Every person has a right to inspect public records of this state except:

(3.) letters or memorandum that are matters of opinion in personnel files or students’ cumulative files;

(12.) as otherwise provided by law.” FERPA

NMSA 1978 § § 14-2-1(A)(3) and (12) (2011).

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IPRA: FERPA EXCEPTION “AS OTHERWISE PROVIDED BY LAW”

NM Attorney General Guide on IPRA, page 21

Specifically outlines FERPA as an example of a federal law that makes records exempt from IPRA disclosure.

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IPRA EXCEPTION: PERSONNEL

Protect information that is subjective rather than factual.

“Information that might have no foundation in fact, but if released for public view, could be seriously damaging to an employee” Letters of reference Documents concerning disciplinary action and

promotions Documents concerning infractions and disciplinary

action Personnel evaluations.

State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (S. Ct. 1977).

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MEDIA INTERVIEW TIPS

Establish a Response Team with a main point of contact: Always the same person –

helps control the message Helps give the press a clear idea of who they should

talk to & how to get the info they need. Main point person DUTIES:

Field all media questions Return media calls Spokesperson in all interviews Move info up the chain of command Establish a reputation of accessibility to reports.

Helps with inputting your perspective in the story. Helps with access to a follow up story.

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INTERVIEW PREPARATION TIPS

Ask for topics & interview questions in ADVANCE of the interview. Allows you to prepare your answers & do your

homework. Map your response – develop a plan with

your Response Team. Accept that you can’t anticipate every

question You can get back to the reporter later.

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INTERVIEW CONDUCT DO’S

Record all interviews, if possible. Assume you are always being recorded. Be polite. Even when it hurts. Remember the reporter asks questions

because it is part of his job. Usually tasked with getting a particular story.

Be honest. Don’t try to conceal negative information, rather

let the interviewer know what you are doing to solve the problem.

Set the record straight. Correct any and all inaccuracies.

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INTERVIEW CONDUCT DO’S

State the most important thing 1st, then provide background.

Keep your answers short. Speak in headlines. Remain confident. Avoid acronyms. “I don’t know” is OK. Your final statement is your most important.

If you feel your message was not clear – make it clear now.

Offer to provide the reporter with a written summary of info, main points, & statistics if possible.

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INTERVIEW CONDUCT DON’TS

Never argue with a reporter. Ever. Don’t talk down to a reporter, but don’t assume

they have done research before talking to you. Don’t overestimate a reporter’s knowledge of

the topic. Chances are he got the story in 40 seconds of an

editorial meeting. Avoid using “no comment” in place of “The

District is aware of the issue and is gathering all of the facts so we can make an assessment and take whatever action might be necessary.” OR “I can’t speak to that because I have not seen the information you are referring to.”

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INTERVIEW CONDUCT DON’TS

Avoid talking around a question, if you don’t understand – ask for clarification.

Avoid communicating anything, “off the record.”

Don’t overreact, or get angry. Never drop your guard until the interview is

over. Really over. Phone hung up. Reporter left the premises.

Don’t elaborate any more than asked or than you deem necessary.

Don’t say something in an email that you don’t want to read in the paper.

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SCENARIO 1: THE “BAD” COACH

Your basketball team has had a terrible season and the community wants to talk about the problems with the coach’s “style.”

During public comment at your Board meeting. At the grocery store: “So are you going to fire

that coach?” The press calls you for a comment.

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REMEMBER: RULES ON PUBLIC COMMENT

Know your: Policies, Procedures, Public Comment Notices

Control the meeting.

Stick to your rules.

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OMA EXCEPTION: LIMITED PERSONNEL

Closed session allowed for the “discussion of: hiring, promotion, demotion, dismissal, assignment or resignation of or the investigation or consideration of

complaints or changes against any individual public employee.”

NMSA 1978, §10-15-1(H)(2) (1999).

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REMEMBER: BOARD’S ROLE V. SUPERINTENDENT IN PERSONNEL MATTERS

The Board can: employ and evaluate a Superintendent for

the district and fix his/her salary 6.29.1.9(A)(2) NMAC (2011) and NMSA 1978, § 22-5-2(B) (2005). Not coaches and teachers.

delegate administrative and supervisory functions to the Superintendent and refrain from involvement in administrative functions. 6.29.1.9(A)(4)–(5) NMAC (2011). Not conduct investigations.

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IPRA REMINDER: PERSONNEL

Protect information that is subjective rather than factual.

“Information that might have no foundation in fact, but if released for public view, could be seriously damaging to an employee” Letters of reference Documents concerning disciplinary action and

promotions Documents concerning infractions and disciplinary

action Personnel evaluations.

State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (S. Ct. 1977).

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SCENARIO: “MY KID DID WHAT?”A student is disciplined for violating the code of conduct for bullying. The perpetrator’s parents deny that their

child could do something so bad. The victim’s parents what to know every

detail of what happened and what the District plans on doing about it.

The community at a Board meeting wants to know what are you going to do about bullying in the schools?

The media wants to run a story all about it.

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WARNING: FERPA

Applies to: Board meetings. Conversations in the grocery store. Calls from the parents. The press asking for information and

comments. District staff that do not have a legitimate

educational need to know the personally identifiable information from education records.

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WHAT YOU CAN SAY IN AN OPEN SESSION?

Policy: What you have, and where the public can find it. What you may consider expanding in response to

the situation. Protocol:

Can tell what you do and how you handle such things in the District. Just not this specific case.

Programs designed to prevent and stop this type of problem.

Programs in response to the situation. The District is taking it seriously. The District is conducting an investigation.

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WHAT CAN’T YOU SAY IN AN OPEN SESSION?

Personally identifiable student information: Includes parents, family, student names.

Press and Media Tips:

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OMA EXCEPTION: STUDENT INFORMATION

Closed Session allowed for:

“the discussion of personally identifiable information about any individual student, unless the student his parent or guardian requests otherwise.”

NMSA 1978, §10-15-1(H)(4) (1999).

Example: Student discipline hearing.

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It is not a violation of FERPA if a school official reports illegal student conduct that he/she observed take place on school grounds to law enforcement.

According to the U.S. Department of Education Family Policy Compliance Office, “FERPA does not prohibit a school official from disclosing information about a student if the information is obtained through the school official’s personal knowledge or observation, and not from the student’s education records.

Example: A teacher overhears a student making threatening remarks to other students, FERPA does not protect that information and the teacher may disclose what she overheard to appropriate authorities.”

Balancing Student Privacy and School Safety: A Guide to the Family and Educational Rights and Privacy Act for Elementary and Secondary Schools (Family Policy Compliance Office, October 2007): http://www.ed.gov/policy/gen/guid/fpco/brochures/elsec.html

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IPRA REMINDER FOR THE MEDIA

“Every person has a right to inspect public records of this state except:

(3.) letters or memorandum that are matters of opinion in personnel files or students’ cumulative files;

(12.) as otherwise provided by law.” FERPA

NMSA 1978 § § 14-2-1(A)(3) and (12) (2011).

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SCENARIO: DON’T STAND SO CLOSE TO ME.

A student accuses a teacher of behaving in a sexually inappropriate way towards her. The student’s mother takes her concerns to the media.

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MANDATORY REPORTING OF SUSPECTED CHILD ABUSE

Reporting to law enforcement or CYFD. Any school official (includes Board members). Reasonable suspicion is all that is needed. NMSA 1978, §§ 32A-4-3 (2005), 32A-1-4(F) (2009)

and 6.29.1.9(C)(3) NMAC (2011).

Reporting to the Ethics Bureau of the NMPED. Done by District Administration post

investigation. 6.68.3.8(C) NMAC (2005).

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An investigator with CYFD has requested student records for the purpose of conducting an investigation of alleged child abuse.

DO WE PROVIDE THE RECORDS TO THE INVESTIGATOR?

Even without parental permission or an emergency or court order as provided for by FERPA, a school district is required to provide student records if CYFD requests them in connection with an investigation of child abuse or neglect.

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CAN A SCHOOL DISTRICT SHARE EDUCATION RECORDS WITH ITS ATTORNEY? Yes. The parent of a student with a disability filed a complaint that the school district improperly disclosed information from his son’s education records to the school district’s attorney. The Family Policy Compliance Office found no violation of FERPA. FERPA’s privacy protections are extended explicitly to records and materials maintained by persons “acting for” an educational agency or institution. South Glenn Falls (NY) Central School District, 32 IDELR 100 (Family Policy Compliance Office July 21, 1999).

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GENERAL LEGAL TIPS:

FERPA applies Maybe Health and Safety Emergency, BUT

narrow. IPRA applies OMA applies

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PRESS AND MEDIA TIPS:

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QUESTIONS?

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THANK YOU!

Nasha Y. Torrez, Esq.

500 Marquette Ave., N.W.Suite 1360

Albuquerque, NM 87102(505) 243-6864

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The information in this handout was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal

advice. If specific legal advice is sought, consult an attorney.

Copyright 2012: Walsh, Anderson, Gallegos, Green & Treviño, P.C.