Can a school district withhold a special-education lawsuit settlement from a reporter by calling it a confidential student record?

Official title

10-IB10 RE: Freedom of Information Act Complaint Against Appoquinimink School District

Plain-English summary

An Associated Press reporter asked Appoquinimink School District for the settlement agreement and related emails from a lawsuit over whether the district had to pay for a sign-language interpreter for a deaf student who wanted to attend private school. The district refused everything, arguing the records were confidential "education records" under federal and state student-privacy law, and that some emails were also protected by attorney-client privilege.

The AG found the district skipped a required step. Federal law (FERPA) makes education records confidential, but that confidentiality belongs to the family, not the school: parents can consent to release the records, and if they do, the records become public under FOIA too. The district had not even asked the family for that consent before refusing the request. The AG also pushed back on the district's broader argument, that a settlement resolving an education dispute is automatically an education record, pointing out that a federal case the district relied on had actually reviewed the specific settlement in question rather than adopting a blanket rule, and noting that in this case the student's identity was already public from the underlying lawsuit, though that did not automatically extend to these particular records, since they were not the ones filed in court. The AG ordered the district to ask the parents for written consent within a week; if the parents refused, the district would then have to hand the withheld records over to the AG's office itself for a confidential, document-by-document review to sort out which portions genuinely qualified as protected education records.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could parents let a Delaware school release their child's confidential education records to a reporter?

Yes, according to this opinion. Federal privacy law that normally made education records confidential let parents consent to their release, and once consent was given, the records became public under FOIA too.

Did a school district have to ask parents for consent before refusing to release a student-related record as confidential?

According to this opinion, yes; the district here had not sought the family's consent before denying the request, and the AG ordered it to do so.

Was a settlement agreement resolving a special-education dispute automatically confidential just because it involved a student?

Not automatically, according to this opinion. The AG found the case the district relied on for that argument had actually reviewed the specific settlement at issue rather than adopting a categorical rule that all such settlements are confidential.

Background and statutory framework

FOIA excluded from "public record" any "records specifically exempted from public disclosure by statute or common law," 29 Del. C. § 10002(g)(6), against the backdrop of its declaration of policy favoring easy public access, id. § 10001, and reasonable access for inspection and copying. Id. § 10003(a). The federal Family Educational Rights and Privacy Act (FERPA) conditioned federal education funding on an institution not having a "policy or practice" of releasing personally identifiable information from "education records" without parental consent, 20 U.S.C. § 1232g(b)(2), defining "education records" as materials directly related to a student and maintained by an educational agency, id. § 1232g(a)(4)(A), and permitting parents to consent in writing to disclosure. Id. § 1232g(2)(A). The Individuals with Disabilities Education Act imposed a parallel confidentiality requirement, 20 U.S.C. § 1412(a)(8), also subject to parental consent. 34 C.F.R. § 300.622(a). Delaware's own student-records statute, 14 Del. C. § 4111(a), incorporated FERPA's framework by reference.

Because FERPA's confidentiality protection belongs to the family and can be waived by parental consent, the AG reasoned that records covered by consent are not "specifically exempted from public disclosure by statute" and therefore become disclosable public records under FOIA. The AG distinguished the district's reliance on the North Carolina federal district court's Wittenberg v. Winston/Salem County Bd. of Educ., noting that decision turned on an in camera review of the specific settlement at issue and the fact that the student's identity was not otherwise public, rather than establishing a categorical rule that any settlement touching a special-education dispute is automatically an education record. A footnote also noted, citing the Third Circuit's Lee v. Minner, that FOIA's references to "citizens" must be read to reach the entire public to remain constitutional.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records is vital to a free and democratic society)
• 29 Del. C. § 10003(a) (public records open to inspection and copying with reasonable access)
• 29 Del. C. § 10002(g)(6) (exemption for records specifically exempted from disclosure by statute or common law)
• 20 U.S.C. § 1232g(b)(2) (FERPA conditions federal funding on not disclosing education records without parental consent)
• 20 U.S.C. § 1232g(a)(4)(A) (FERPA's definition of "education records")
• 20 U.S.C. § 1232g(2)(A) (procedure for obtaining parental consent to disclosure)
• 20 U.S.C. § 1412(a)(8) (IDEA's parallel confidentiality requirement for education records)
• 34 C.F.R. § 300.622(a) (IDEA regulation permitting disclosure with parental consent)
• 14 Del. C. § 4111(a) (Delaware student education records are confidential, subject to Department of Education regulations incorporating FERPA)
• Wittenberg v. Winston/Salem County Bd. of Educ., 2009 WL 1684585 (M.D.N.C. June 16, 2009) (federal court; a settlement agreement's confidentiality as an education record was determined by in camera review, not a categorical rule)
• Lee v. Minner, 458 F.3d 194 (2006) (federal court; FOIA must apply to the entire public, not just Delaware citizens, to be constitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/09/08/10-ib10-re-freedom-of-information-act-complaint-against-appoquinimink-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB10 (Del.A.G.), 2010 WL 3708658

Office of the Attorney General

State of Delaware

Opinion No. 10 – IB10

September 8, 2010

RE: Freedom of Information Act Complaint Against Appoquinimink School District

*1 Mr. Randall Chase

The Associated Press

P.O. Box 934

Dover, DE 19903

Dear Mr. Chase:

On July 16, 2010, the Delaware Department of Justice (“DDOJ”) received your email alleging the Appoquinimink School District (“District”) had violated the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”), in refusing to provide you with public records. On the same date, we emailed your complaint to the District’s attorney, requesting a response on or before July 26, 2010. We received no reply from the District, but on August 17, 2010, the District did reply to our request for further information.

RELEVANT FACTS

On May 28, 2010, you requested the District provide you with the following records:

1. The settlement agreement between the parties to Bd. of Educ. of the Appoquinimink Sch. Dist., et al. v. SQJ, V, et al. , D. Del., C.A. No. 06-770-JJF.

2. All attachments, amendments, memoranda supplements and supporting documents to that settlement agreement.

3. All emails between one of the defendants to that action, Julie Johnson, and “district administrators,” their agents and representatives regarding that civil action.

4. All emails between district administrators, their agents and representatives and the “other members of the school board” and their agents and representatives regarding that civil action.

5. All emails between Julie Johnson and “other members of the school board” regarding that civil action.

The civil action between the District and the Johnsons was an appeal of an administrative panel’s decision that the District pay for a sign language interpreter for the Johnsons’ deaf son (“Student”), if the Student left the public system to attend a private school. Summary judgment was granted in the District’s favor, and the Johnsons appealed. The appeal was dismissed by agreement of the parties.

The District refused to provide the records you requested, on the grounds it has no records responsive to item 5, and items 1-4 are “educational records” that are confidential under both federal and state law, citing the Family Educational and Privacy Act (“FERPA”) and 14 Del. C. § 4111 . In addition, the District claims that item 4 requests records protected by attorney client and attorney work product privileges.

RELEVANT STATUTES

The Delaware Freedom of Information Act was enacted to so that “citizens have easy access to public records in order that the society remain free and democratic.” 1 29 Del. C. § 10001 . FOIA requires that the public must have “reasonable access to” public records for “inspection and copying.” 29 Del. C. § 10003 (a). FOIA excludes from the definition of “public record” “[a]ny records specifically exempted from public disclosure by statute or common law. 29 Del. C. § 10002 (g)(6).

*2 FERPA provides that federal funds will be denied to any educational entity that has a “policy or practice” of releasing “any personally identifiable information in education records” without the written consent from a minor student’s parents. 20 U.S.C. § 1232g(b)(2) . “Education records” are any materials that “contain information directly related to a student” and that “are maintained by an educational agency or institution ….” 20 U.S.C. § 1232g(a)(4)(A) . The Individuals with Disabilities Education Act (“IDEA”), also requires states receiving federal assistance to have policies and procedures for keeping education records confidential. 2 20 U.S.C. § 1412(a)(8) . As under FERPA, IDEA provides that education records may be disclosed with parental consent. 34 C.F.R. § 300.622(a) .

Section 4111(a) of title 14 of the Delaware Code provides that student “education records” are confidential, and may only be released in accordance with regulations of the Department of Education. Those regulations incorporate FERPA and its implementing regulations. 14 Del. Admin. C. § 251.

DISCUSSION

FOIA provides that records protected from disclosure by statute are not public records. 29 Del. C. § 10002 (g)(6). FERPA provides that education records may not be disclosed unless the parents consent. Therefore, records as to which the parents give their consent are not protected by statute, and are public records under FOIA . In this case, the District does not appear to have sought the Johnsons’ consent to provide you copies of what the District considers confidential education records. If the Johnsons consent to the release of the requested records, the issue of which records are properly excluded as education records becomes moot. If the Johnsons do not consent, then all records the District deems to be education records must be submitted to this office for confidential review so that we can determine which records, or parts thereof, are education records within the meaning of FERPA.

The District cites Wittenberg v. Winston/Salem County Bd. of Educ. , 2009 WL 1684585 (M.D.N.C. June 16, 2009) as support for its contention that an agreement settling litigation over an educational issue is per se an education record. However, that case is not precedent for such a blanket exclusion, because 1) in that case the identity of the student was not already a public record, as it is here, 3 and 2) the court, after reviewing the settlement agreement, concluded that release of the agreement would violate the student’s right to the privacy of his education records. If the Johnsons do not consent to release of the records, then we will need to review them to determine whether disclosure would violate FERPA.

CONCLUSION

Within 7 days of this determination, the District shall forward to the Johnsons a request for their written consent to the release of the records requested in items 1-4, as provided in 20 U.S.C. § 1232 (g)(2)(A). If the Johnsons do not consent by September 10, 2010, the District shall then provide the records to this office for review.

Sincerely,

*3 Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
While FOIA refers throughout to “citizens,”-restricting the rights created by FOIA to only citizens of Delaware has been held unconstitutional. Lee v. Minner , 458 F.3d 194 (2006) . Therefore, we will use the term “public” rather than “citizens.”

2
IDEA defines “education records” as defined in FERPA. 34 C.F.R. § 300.611(b) .

3
The Johnsons waived their FERPA right of nondisclosure in the civil action, so all documents filed in the civil action are public. However, none of the records you request were filed in the civil action, so the Johnsons’ waiver in that case has no application to your request.

Del. Op. Atty. Gen. 10-IB10 (Del.A.G.), 2010 WL 3708658