Date:
09/19/2019
Subject:
Charles Vandenberg/West Burlington Independent School District - Probable Cause Report and Final Order
Opinion:
Before The Iowa Public Information Board
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In re the Matter of: Charles Vandenberg, Complainant And Concerning: West Burlington Independent School District, Respondent |
Case Number: 19FC:0075
Probable Cause Report |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and respectfully submits this probable cause report for formal complaint 19FC:0075.
Background
On June 24, 2019, Charles Vandenberg filed formal complaint 19FC:0075 against the West Burlington Independent School District (District) alleging a violation of Iowa Code chapter 22. He alleged that the District improperly refused to provide a record he requested.
In an email sent June 22, 2019 (dated June 24, 2019), Mr. Vandenberg requested copies of “any documents pertaining to, and used for the evaluation, determination and approval of, the open enrollment request/examination/approval of a student identified on your June 16, 2019 board meeting agenda as Max Slater from Fort Madison School District.” He noted on the request that the 2017-18 Iowa Open Enrollment Handbook lists these records as public records, but allows for redaction of personal information as outlined in Iowa Code section 22.7(1).
Two days later his request was denied, and this complaint was filed.
In response to the formal complaint, the District’s legal counsel filed a response on July 3, 2019. The response stated that the “narratives” have been withheld because they contain threats against “the Defendant” and other “safety concerns.” It continued: “Given the types of threats and student involvement, to disclose this information could exacerbate the threatening environment. The interest in protecting those involved outweighs the public’s right to know.”
The response concluded that the IPIB lacks jurisdiction over “this matter” and the “case should be dismissed.”
Efforts between July 9, 2019, and August 8, 2019, by email and telephone contact from the IPIB to the District to determine what was meant by the statements in the response were unsuccessful.
An email sent by the Iowa Department of Education to Mr. Vandenberg on July 9, 2019, advised that open enrollment forms are public records and supported his complaint to the IPIB.
The IPIB accepted this complaint on August 15, 2019. Pursuant to Iowa Code section 23.9 efforts were initiated to reach an informal resolution.
The District retained new legal counsel on August 13, 2019. Counsel for the District then stated that the open enrollment form could be released, but that the narrative attached to the form constituted a confidential student record pursuant to Iowa Code section 22.7(1) and the Family Educational Rights and Privacy Act (FERPA).
To assist with the formal investigation of this complaint, the District provided a copy of the open enrollment form, with the narrative, under the confidential record protection of Iowa Code section 23.6(6). This confidential record was reviewed by IPIB staff.
In addition, staff reviewed the Open Enrollment Handbook, 2019-2020 school year, which states:
“22. Question: Are open enrollment forms public documents? Answer: Yes, as soon as the district has it in its possession, it is public information. However, districts must remove certain confidential information before releasing the form under the open records law in Iowa. Iowa Code section 22.7(1).” (At page 7)
Legal Analysis
Iowa Code section 22.7(1) identifies certain student records as confidential: “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….” The open enrollment narrative is a student record that is considered confidential pursuant to this section.
Mr. Vandenberg stated in his record request that he understood that certain records may need to be redacted to protect confidentiality. The District responded that redaction of the narrative was not possible. Upon confidential in camera review of this document, it was apparent that redaction would not sufficiently maintain confidentiality as directed by Iowa Code section 22.7(1).
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.
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:
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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
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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).
Because the narrative is specific to the student seeking open enrollment, release of the document would identify the student and the specific personal and educational needs supporting the open enrollment request. It could also identify other students involved.
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.
IPIB Action
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.
Recommendation
Based upon investigation of the complaint, I recommend that the IPIB determine probable cause does exist to believe that the West Burlington Independent School District violated Iowa Code chapter 22 by failing to release the open enrollment form when first requested, but that probable cause does not exist to believe that the West Burlington Independent School District violated Iowa Code chapter 22 by withholding the release of the narrative.
I further recommend that this complaint be dismissed in its entirety as an exercise of administrative discretion pursuant to Iowa Administrative Code Rule 497 - 2.2(4)(c), as the District has agreed to release the open enrollment form.
Respectfully submitted this 19th day of September, 2019.
_______________________________
Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the 12th day of September, 2019, to:
Charles Vandenberg
Danielle Haindfield, counsel for the West Burlington Independent School District
The Iowa Public Information Board
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In re the Matter of: Charles Vandenberg, Complainant And Concerning: West Burlington Independent School District, Respondent |
Case Number: 19FC:0075
Probable Cause Order |
This matter comes before the Iowa Public Information Board (IPIB) this 19th day of September, 2019, to consider a Probable Cause Report.
The Probable Cause Report recommends that the IPIB determine that probable cause does exist to believe that the West Burlington Independent School District violated Iowa Code chapter 22 by failing to release the open enrollment form when first requested, but that the West Burlington Independent School District did not violate Iowa Code chapter 22 by withholding release of the open enrollment narrative.
The Probable Cause Report also recommends that the IPIB dismiss this complaint as an exercise of administrative discretion pursuant to Iowa Administrative Rule 497-2.2(4)(c).
The IPIB finds that there is no probable cause to believe that the West Burlington Independent School District violated Iowa Code chapter 22 by withholding the release of the open enrollment narrative.
The IPIB finds that there is probable cause to believe that the West Burlington Independent School District violated Iowa Code chapter 22 by failing to promptly release the open enrollment form.
Pursuant to Iowa Administrative Rule 497-2.2(4)(c) the IPIB adopts the findings and recommendations of the Probable Cause Report, enters a finding of no probable cause as to the release of the enrollment form only, and dismisses this complaint as an exercise in administrative discretion.
So ordered this 19th day of September, 2019.
_____________________________________
IPIB Chair
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2019, to:
Charles Vandenberg
Danielle Haindfield, counsel for the West Burlington Independent School District