||Mr. Bruce A. Harris
||James A. Robinson, General Counsel
||Public Records Issues
||Your letter requesting an opinion dated 10/24/01
- Should the School District redact personally identifiable information on students mentioned in letters sent by parents to the Superintendent, before the District releases such letters as public records?
- If any of the letters mentioned in Question 1 identify teachers or other district personnel in a derogatory manner or in the context of a general complaint, must the District refrain from releasing such letters as public records until 10 days after the employee has been notified of the letter using the procedures of Section 231.291(2)(c) and 231.291(3)(a)(3), Florida Statutes?
- No. Unlike the release of redacted public records under ch. 119, the student records law does not contemplate the redaction of personally identifiable student records.
- Yes. These letters should not be released until 10 days after the employee has been properly notified pursuant to Section 231.291(2)(c), Florida Statutes.
- Absent an Exception to the Public Records Act, Mail Received by the Superintendent is a Public Record
The Attorney General has taken the position that a letter addressed to a public official becomes a public record once it is received and opened by the addressee or the addressee's agent, unless there is a legislative exemption that makes the document confidential.1
In accordance with the Attorney General's position, a three step process is involved in handling public record requests for "mail" received by any officer or employee of the School Board in connection with the course of the Board's official business: 1) recognize that mail received by an agency is a public record; 2) review the mail to see if any exemptions apply, and; 3) disclose the non-exempt material.
The Public Records Act is applicable to letters or other documents received by a public official in his or her official capacity. See AGO 77-141. The Florida Supreme Court has held that public records include all materials made or received by an agency in connection with official business, which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). Clearly, letters addressed to the Superintendent of a school district in his or her official capacity constitute public records. Hence, as with other public records, upon receipt of a public records request for correspondence, the custodian should retrieve the records, review them for exemptions and allow public inspection of
the non-exempt material.
Even if the letter's sender labels it confidential or requests that the document remain anonymous to the public, the Attorney General maintains that such letters must be analyzed for statutory exemptions. The determination as to when public records are to be deemed confidential rests exclusively with the Legislature.2 To allow the maker or sender of documents to dictate the circumstances under which the documents are to be deemed confidential would permit private parties as opposed to the Legislature to determine which public records are subject to disclosure and which are not. Such a result would contravene the purpose of Chapter 119, Florida Statutes.3
- Letters Mentioning Students by Name or by Implication
Congress has established statutory protections for certain educational records of students in the Family Educational Rights and Privacy Act (FERPA).4 The Family Educational Rights and Privacy Act is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Educational records include documents 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.5
The Florida Legislature has also created privacy rights for students regarding certain records and reports maintained by an educational institution.6 Personally identifiable records or reports of a pupil or student, and any personal information contained therein, are confidential and exempt from the provisions of s. 119.07(1), F.S.7 Although the state law does not give a clear definition of "personally identifiable information," the FERPA Regulations provide that... personally identifiable information is any material including: 1) the student's name; 2) the name of the student's parent or other family member; 3) the address of the student or student's family; 4) a personal identifier, such as the student's social security number or student number; 5) a list of personal characteristics that would make the student's identity easily traceable; and 6) other information that would make the student's identity easily traceable.8
Florida Statutes uses the term "pupil records" instead of "educational records." Pupil records are defined as official records, files and data directly related to students which are created, maintained and used by educational institutions, including all material that is incorporated into each pupil's cumulative report folder and intended for school use.9
Materials which shall be considered as part of a pupil's record include: identifying data; academic work completed; level of achievement records, including grades and standardized achievement test scores; attendance data on standardized intelligence, aptitude and psychological tests; interests inventory results; health data; family background information; teacher or counselor ratings and observations; verified reports of serious or recurrent behavior patterns; and any other evidence, knowledge, or information recorded in any medium.10
A letter to the Superintendent naming a student obviously constitutes "identifying data" and is considered "information recorded in any medium." As a result, this information could not be released without lawful consent. Additionally, it is likely that these letters could discuss other matters in such a way as to indirectly or inadvertently identify a particular student. Hence, this information could reasonably constitute "personally identifiable information," and be prohibited from release without lawful consent. Although these types of letters do not pigeonhole neatly into a particular category, Florida's pupil-record privacy laws (including FERPA and the FERPA regulations) suggest a liberal construction of the statute against unauthorized disclosures.
When a public record contains confidential information, Section 119.07(2)(a), Florida Statutes, requires the record to be disclosed with the confidential information redacted or deleted from the documents. However, the First District Court of Appeal has recognized that the student records law does not contemplate the release of student records in redacted form. In Florida State University v. Hatton, 672 So. 2d 576 (Fla. 1st DCA 1996), a university appealed a hearing officer's order to produce disciplinary records that identified students by name. The court rejected the argument that the students' names could be redacted and the rest of the materials produced. The court noted that Section 228.093, F.S., only allows the release of edited reports in a very narrow exception: when a report contains information on more than one student, the other students' names may be redacted so that a parent can look at his or her child's information. Therefore, the university was permitted to submit summaries of student
disciplinary action in response to the order.
In light of the Hatton decision, this office has concluded in past opinions that student records should not be released in redacted form. The same concern would be at issue in this case: personally identifiable student records should not be released in redacted form, but a summary of the document may be provided.
- Letters Mentioning Personnel
- General Statements of Dislike or Statements of Displeasure
Statements contained in a letter to the Superintendent from a parent pertaining to a teacher may become part of a teacher's personnel file under s. 231.291, F.S. It specifically provides that only materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal will be placed in an employee's personnel file.11 That section further states that no derogatory materials relating to an employee's conduct, service, character or personality shall be placed in the personnel file of an employee.12 Additionally, this statute declares that no anonymous letter or anonymous materials shall be placed in an employee's personnel file.13 This unmistakably expresses the Legislature's concern with unfounded allegations being used to simply harass employees. From these provisions, it is reasonable to infer that the Legislature noted the possibility of unwarranted and unjustified comments being documented in an employee's personnel file.
The statute clearly prohibits this sort of information from being used against or to harass an employee.
A personnel file is defined to include
"all records, information, data, or materials maintained by a public school system, in any form or retrieval system whatsoever, with respect to any of its employees, which is uniquely applicable to that employee whether maintained in one or more locations."14 This section appears to broaden the coverage of a personnel file, notwithstanding the exclusions provided in s. 231.291(1)(a), F.S. The specific exclusions apply to the material being placed in an employee's personnel file, however, it does not exclude such information being maintained in another data-base that is not considered a personnel file under s. 231.291(4), F.S.
To clarify, if the particular database is construed to come within the scope of s. 231.291(4), F.S., then the requirements of s. 231.291(1)(a), F.S., will immediately become pertinent. Letters to the Superintendent that are maintained in a manner of retrieval that satisfies the statutory criteria will constitute a "teacher's" personnel file. Thus, the prohibition of placing such derogatory material relating to the employees' conduct, service, character, or personality becomes applicable.15 Such information shall not be placed in the files unless they satisfy ss. 231.291(2), and 231.291(3)(a)(3), F.S.
If the materials or letters do relate to an employee's work performance, discipline, suspension, or dismissal, it must be reduced to writing and signed by a person competent to know the facts or make the judgment.16 This information "may" properly be placed in the "personnel file." Then, and only then, does s. 231.291(3)(a)(3), F.S., regarding the Public Records Law, become applicable (public inspection for derogatory material about an employee). As stated earlier, this shows the Legislature's obvious concern for unsupported and unfounded information being used against employees in their personnel files.
Section 231.291(3)(a)(3), Florida Statutes, states that "no material derogatory to an employee shall be open to inspection until 10 days after the employee has been notified pursuant to s. 231.291(2)(c), F.S." This section applies only to "properly" maintained personnel files that contain derogatory material legitimately documented regarding a particular employee. If this is the case, then this section requires that a copy of the employee's personnel file must be provided to the employee either: 1) by certified mail, return receipt requested, to his or her address of record; or 2) by personal delivery.17 This procedure gives notice to the employee and allows him or her a chance to respond. However, if the letter is not maintained in such a way that satisfies the criteria of s. 231.291(4), F.S., then it may become a public record by operation of law.
For example, as previously noted, a letter may become a public record because of simply being addressed to the Superintendent's office. If such a letter contains "derogatory" material, it is our opinion that the letter should be treated in the same restrictive fashion expressed in s. 231.291(3)(a)(3), F.S. These types of public records containing such derogatory material should first be afforded to the employee before being released to the public. This practice would carry out the Legislature's intent of the Sunshine Law and would give the employee proper notice of the derogatory comments before being aired for public inspection.
The applicable provisions of Section 231, Florida Statutes, and Chapter 119, Florida Statutes, must be construed in pari-materia, (as a whole) so the statutes are given their full effect. It is a well-established maxim of statutory construction that "applications resulting in conflicting interpretations will serve to defeat the Legislature's intended purpose, so the statutes must be harmonized."18
- Official Complaints:
Another question that has been raised is to treat these types of letters as "official complaints." It is our opinion that this would be inconsistent with the purpose of the statute. Section 231.291(3)(a)(1), Florida Statutes, expressly states that any complaint and any material relating to the investigation of a complaint against an employee shall be confidential and exempt from the provisions of s. 119.07(1), F.S. Otherwise, a personnel file is subject to the provisions of s. 119.07(1), F.S. unless the letter satisfies the definition of "complaint," or it "relates" to a valid complaint. If it does not, then s. 231.291(3)(a)(1), F.S., can not be applicable.
The procedures for handling official complaints are prescribed in s. 231.262(1)(a), F.S. That statute specifically states:
[T]he Department of Education shall cause to be investigated expeditiously any compliant filed before it or otherwise called to its attention which, if legally sufficient, contains grounds for the revocation or suspension of a certificate or any other appropriate penalty as set forth in subsection (7). The complaint is legally sufficient if it contains the ultimate facts which show a violation has occurred as provided in s. 231.2615, F.S.19
It is our opinion, that the Legislature has explicitly stated how to handle these "legally sufficient complaints," and to treat the letters (public records) otherwise, would be improper. Hence, if the letter is one that would legitimately be placed in the personnel file, then it should be treated as such. Further, if the letter satisfies the criteria in s. 231.2615, F.S., then it should be construed as a complaint. This is the statutory procedure that should be followed.
A letter to a Superintendent naming a student and addressing an aspect of the student's education should be considered a part of a student's record. As a personally identifiable record, it is exempt from disclosure to the public. A state appellate court has held that a student record may not be released in redacted form, but must be treated as wholly confidential. A summary of the document may be released, provided that it does not contain personally identifiable information.
The Legislature clearly intended to protect employees from the impact of unfounded allegations. That is the obvious reason for the prohibitions against anonymous letters or personality complaints being placed in an employee's personnel file.20 Even if such letters do not satisfy the criteria for becoming a personnel file, and they are otherwise considered a public record, it is our opinion that such letters should be treated with the same statutory protections laid out in s. 231.291(3), F.S. Hence, these letters should not be released for public inspection until 10 after the employee has been officially notified using the procedures specifically prescribed by the legislature.21
1 See Attorney General's Official Website (Most Frequently Asked Questions on Florida's Open Government Laws)
2 See AGO 90-104 and AGO 71-394 (reports received and marked confidential or return to sender must be open to public inspection unless exempted from disclosure by the Legislature).
3 See Gadd v. News-Press Publishing Company, 412 So. 2d 894 (Fla. 2d DCA 1982) (records of a utilization review committee of a county hospital were not exempt from Chapter 119, F.S., even though the information may have come from sources who expected or were promised confidentiality).
4 See FERPA, 20 U.S.C. § 1232g et al.
5 20 U.S.C. § 1232g(a)(4) (2001).
6 § 228.093(3), Fla. Stat. (2001).
7 § 228.093(3)(d), Fla. Stat. (2001).
8 34 C.F.R. § 99.3 (2001).
9 § 228.093(2)(e), Fla. Stat. (2001).
10 § 228.093(2)(e), Fla. Stat. (2001).
11 § 231.291(1)(a), Fla. Stat. (2001).
12 § 231.291(1)(a), Fla. Stat. (2001).
13 § 231.291(1)(b), Fla. Stat. (2001).
14 § 231.291(4), Fla. Stat. (2001).
15 § 231.291(1)(a), Fla. Stat. (2001).
16 § 231.291(2)(a), Fla. Stat. (2001).
17 §§ 231.291(3)(a)(3); 231.291(2)(c), Fla. Stat. (2001).
18 See Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000). (Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another)
19 § 231.262(1)(a), Fla. Stat. (2001).
20 See § 231.291(1), Fla. Stat. (2001).
21 See §§ 231.291(2)(c) and 231.291(3)(a)(3), Fla. Stat. (2001).
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