22FC:0062 Randy Evans/Carlisle Community School District - Dismissal Order

Date:
08/18/2022

Subject:
Randy Evans/Carlisle Community School District - Dismissal Order

Opinion:

 

The Iowa Public Information Board

In re the Matter of: Randy Evans, Complainant And Concerning: Carlisle Community School District Superintendent,  Respondent

Case Number: 22FC:0062                                                                  Dismissal Order

 

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.

Randy Evans filed formal complaint 22FC:0062 on June 26, 2022, alleging that the Carlisle Community School District Superintendent (Superintendent) violated Iowa Code chapter 22 on June 21, 2022.

Mr. Evans alleged that on June 6, 2022, he requested any records that “list by name the members of the Carlisle Community School District’s media reconsideration committee.”   He stated that the committee was formed in August 2021 by the school district in Policy #605.3R1.

Included in his complaint were:

1. A copy of his record request of June 6, 2022;
2. A copy of an email response dated June 21, 2022, in which the Superintendent denies the release of the names of the two student members on the committee;
3. Policy 605.3R1 (Attachment A); and
4. A letter to the Superintendent dated April 26, 2022, in which Mr. Evans informs the Superintendent that it was a violation of Iowa Code chapter 22 to refuse to release the student names in response to an identical record request by Samantha Fett.1

On July 22, 2022, legal counsel for the Carlisle Community School District (District) responded to the complaint on behalf of the Superintendent.  Legal counsel stated that the original record request for the names of the students on this committee was filed by Samantha Fett on March 28, 2022.  

On April 11, 2022, legal counsel informed the Superintendent that the names of the students were confidential pursuant to Iowa Code sections 22.7(1), 22.7(11)(b), and 22.7(18) and the Family Educational Rights and Privacy Act (FERPA).2

Legal counsel also referenced two Iowa Supreme Court decisions:  1. Clymer v. The City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999) and 2. Press Citizen v. University of Iowa, 817 N.W.2d 480 (Iowa 2012).

Iowa Code section 22.7(1) defines confidential student records:

1. Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student’s education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 48.

Iowa Code section 22.7(11) defines personal information in personnel files as confidential and references student employees in subsection (b):

11. a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:

(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, “compensation” means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.

(2) The dates the individual was employed by the government body.

(3) The positions the individual holds or has held with the government body.

(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual’s previous employers, positions previously held, and dates of previous employment

(5) The fact that the individual resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion.  For purposes of this subparagraph, "demoted" and "demotion" mean a change of an employee from a position in a given classification to a position in a classification having a lower pay grade.

b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. § 1232g. (Emphasis added.)

Subsection (b) refers the lawful custodian to FERPA to determine whether to release information in student records if a student is an employee.  

Iowa Code section 22.7(18) protects records concerning information received from individuals who could reasonably be expected to not have communicated with a government body had they known that the record would be released:

18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:

a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public recorD.

b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person

c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger. (Emphasis added.)

Counsel argued that the students involved in all likelihood would not have volunteered to serve on this committee had they (or their parents) known that this information would be released.  

In support of this argument, counsel cited various recent events in this school district as well as other schools and libraries in the state where adults have been targeted for decisions relating to certain books that have been characterized as inappropriate, as well as legislation proposed in Iowa that would criminalize the distribution of certain books.

If the two students could arguably be considered as District volunteer employees, then the provision of Iowa Code section 22.7(11)(b) would require that their information be released only as allowed by FERPA.  

Counsel argued that “It adds no public value to disclose the names of the individual school children who weighed in on their library’s decision to carry the book…. The names of the children on the committee do not add to the public’s access to the reason behind the school board’s decision.  Providing student names on this committee would serve no public purpose other than to expose these students to potential harassment and ultimately harm community engagement as a whole.

Mr. Evans replied that FERPA and Iowa Code section 22.7(1) allow the release of “directory information” from student records.  He provided examples from the District's website that included names and photographs of students engaged in band, choir, sports, and student council as examples.

The IPIB adopted the analysis of the interplay between FERPA and Iowa Code section 22.7(1) in a probable cause report in Formal Complaint 19FC:0075, Vandenberg and West Burlington Independent School District:
  

FERPA restricts the release of any “personally identifiable information” from educational records. This includes names and addresses of students and parents, social security and student numbers, indirect identifiers (date of birth, place of birth), and: 

1. Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
    
2. Information requested by a person who the educational agency or institution reasonably believes knows the identity or the student to whom the educational record relates.”

The Iowa Supreme Court has ruled that Iowa Code chapter 22 incorporates the confidentiality provisions from FERPA (Press Citizen Company, Inc. v. University of Iowa, 817 N.W.2d 480 (Iowa 2012)).  

The Court, in the Press Citizen opinion, also ruled that an entire record can be withheld as confidential when the record requestor “would otherwise know the identity of the referenced student or students even with redactions.” (At 492).

FERPA does allow the release of personally identifiable information in certain circumstances that are not applicable to this record request. There are also provisions in the federal law that permits a parent or eligible student to consent in writing to the release of certain records. 

Directory information is defined by FERPA as:

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. 

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.  (Emphasis added.  See 20 U.S.C. 1232g(a)(5)(A).)

The District enacted Policy #506.2 as the procedure to allow students and parents to determine whether to ‘opt out’ of the release of student directory information (Attachment B).  

This policy lists the information that parents can choose to allow the District to release.  It includes “(p)articipation in officially recognized activities and sports” as ‘directory information’.  

Page four of the policy offers examples of activities and sports considered as directory information, such as theater productions, the yearbook, honor roll, graduation programs, and sports activity sheets.  

Not included in the examples are any mention of any review committees, such as disciplinary review, library material review, curriculum review, etc.  Had the two students or their parents known that participation on this committee would be considered an “officially recognized activity” they might have chosen to opt out of allowing disclosure of their student’s identity.  

Policy #506.2 also defines ‘directory information’ as “information that is generally not considered harmful or an invasion of privacy if released.”  Legal counsel for the District has made it clear that releasing the names of the children on the committee would be considered “harmful or an invasion of privacy.”

In 2012, the Iowa Supreme Court, in Press-Citizen Company, Inc. v. University of Iowa, 817 N.W.2d 480,  the Court reviewed the interplay between FERPA and Iowa’s public records laws.  In particular, the Court determined that Iowa Code section 22.9 requires that federal law concerning record release be given priority when federal funding of a government body could be impacted:

“We therefore find that the Open Records Act incorporates the confidentiality obligations from FERPA.”  (At 490.)

In an 1980 Iowa Attorney General Opinion3, another option was discussed - the use of injunctive protection pursuant to Iowa Code section 22.8(1).  This section allows the record custodian to a court injunction in certain circumstances:

1. The district court may grant an injunction restraining the examination, including copying, of a specific public record or a narrowly drawn class of public records. A hearing shall be held on a request for injunction upon reasonable notice as determined by the court to persons requesting access to the record which is the subject of the request for injunction. It shall be the duty of the lawful custodian and any other person seeking an injunction to ensure compliance with the notice requirement. Such an injunction may be issued only if the petition supported by affidavit shows and if the court finds both of the following:

a. That the examination would clearly not be in the public interest.

b. That the examination would substantially and irreparably injure any person or persons.

The Attorney General opinion stated:  “Accordingly, the definition of personal information for purposes of section 68A.7(1) appears to require a consideration of the balance of the public’s right to know versus the individual’s right to privacy….While public access to students’ names and addresses might be inappropriate in certain circumstances, it does not appear that the potential for abuse is so great that these records should be afforded confidential status in all circumstances.”4

The District balanced the release of the students’ names as possible directory information with the requirement of FERPA that directory information is only “information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.”5

The Superintendent, in declining to release the names of the students, was following the direction of the District.

It is uncertain whether this complaint was filed within 60 days of the alleged offense, as required by Iowa Code section 23.7(1).  Mr. Evans was apparently aware of the alleged offense as early as the date of his April 26, 2022, letter to the Superintendent.  This is beyond the 60 days required to file a complaint with the IPIB.

Mr. Evans then filed a similar record request to the Superintendent on June 6, 2022.  The second denial for the student names from the Superintendent on June 22, 2022, was within the 60 day jurisdictional limitation.  However, for the reasons previously stated, his allegation of a violation of Iowa Code chapter 22 is legally insufficient, and it is not necessary to determine when he became aware of the alleged violation.

Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint.  This complaint does not meet the necessary requirements for acceptance.

IT IS SO ORDERED:  Formal complaint 22FC:0062 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).  

Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.”  The IPIB will review this Order on August 18, 2022.  Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

________________________________

Margaret E. Johnson
 
1. In the letter dated April 26, 2022, Mr. Evans states he was following up on a record request made by others in March 2022.  At that time, the Superintendent had fulfilled the request for the membership list of the media reconsideration committee by releasing the names of the adults on the committee, but not the students.  Mr. Evans stated in the letter that he disagreed with the Superintendent’s refusal to release the students’ names and argued that Iowa Code 22.7(1) and the Family Educational Rights and Privacy Act (FERPA) do not define these records as “personal information in records regarding a student.”  

2.  FERPA is a federal law designed to protect the privacy of students and parents with respect to educational records. The full text of FERPA is found at 34 CFR 99, 20 U.S.C. 1232g.                                                                           
3. Norby to Benton, 1980 Iowa Op. Atty. Gen. 720 - 1980 WL 25998.
4, NIowa Code section 68A.7(1) is now Iowa Code section 22.7(1).
5.  20 U.S.C. 1232g(a)(5)(A).

CERTIFICATE OF MAILING  

This document was sent by electronic mail on the ___ day of August,  2022, to:

Randy Evans

Katherine Beenken, legal counsel for the Carlisle Community School District Superintendent