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2002 Opinions

Date:   April 2, 2002
Prepared By:   Ronald G. Stowers
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   02-06
Staff Contact:    
MEMORANDUM OPINION
TO: James A. Robinson, General Counsel
FROM: Ronald G. Stowers, Assistant General Counsel
SUBJECT: Release of Student Records
RE: Legal Opinion--Public Records Request from People for the American Way Foundation

Following receipt of a public records request, you have requested our opinion as to whether certain information relating to McKay Scholarship recipients is available or otherwise subject to public inspection pursuant to Chapter 119, Florida Statutes. Please be advised, it is not.

BACKGROUND:

In a letter dated March 12, 2002, Mr. Dwight Holmes, Education Policy Manager for the People for the American Way Foundation, made a public records request pursuant to Chapter 119, Florida Statutes, to Ms. Diane McCain, Director of the McKay Scholarship Program for Students with Disabilities. Attachment 1. In the request, Mr. Holmes seeks to obtain information regarding each student who received a McKay Scholarship during the 2001-2002 school year.

Mr. Holmes indicated that his request does not include any information that would identify a particular student, such as name and social security number. However, Mr. Holmes does request demographic information, as well as information concerning each student's disability, which could and in many cases will identify a student. Specifically, the following data is requested.

  1. The year in which the student first accepted a McKay Scholarship (2000-01 or 2001-02).

  2. The name of the public school attended by the student in the school year prior to accepting a McKay Scholarship, and the district and school number codes used in the Florida School Indicators Report.

  3. In the case of McKay Scholarship students attending private schools, the name of the school attended by the student in 2001-02, and the district number codes that are used in the Florida School Indicators Report.

  4. In the case of McKay Scholarship students attending public schools, the name of the school attended by the student in 2001-02, and the district and school numbers that are used in the Florida School Indicators Report.

  5. The student's grade level in 2000-01.

  6. The student's grade level in 2001-02.

  7. The student's specific type and level of disability, as well as the matrix code or other eligibility code used to determine the value of the scholarship and/or the student's primary area of eligibility (e.g., "H" for "deaf/hard of hearing").

  8. The amount of the expenditures made on behalf of the student under the McKay Scholarship Program in 2001-02, and how many quarterly payments this represents.

  9. All demographic data pertaining to the student collected or maintained by the Department, including gender, race/ethnicity, and free/reduced lunch status.

The question arises, may the information requested be released?

SHORT ANSWER:

The information Mr. Holmes seeks is defined by state law as a "student record". See, Section 228.093(2)(e), Florida Statutes. Student records1 are confidential and exempt from Section 119.07(1), Florida Statutes, relating to public records. See, Section 228.093(3)(d), Florida Statutes. Therefore, for reasons more particularly described below, the records requested may not be produced.

DISCUSSION:

Access to Public Records

Section 24, Article I of the State Constitution, relating to access to public records and meetings, was adopted in 1992. Subsection (a) provides:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

[Emphasis supplied.]

Section 24, Article I of the State Constitution, raised to the level of a constitutional right the basic provisions of Chapter 119, Florida Statutes, relating to access to public records, which had been in place since 1967. See, Section 7, Chapter 67-125, Laws of Florida. Section 119.07(1)(a), Florida Statutes, provides in pertinent part the following.

Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under the supervision by the custodian of the public record or the custodian's designee.


Access Limitation to Public Records

Subsections 24(c) and (d), Article I of the State Constitution, address exemptions to the access of public records and provide in pertinent part the following.

(c) This section shall be self-executing. The legislature, however, may provide by general law for the exemption of records from the requirements of subsection (a) . . . provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section . . . . Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsection (a) or (b) and provision governing the enforcement of this section, and shall relate to one subject.

(d) All laws that are in effect on July 1, 1993 that limit public access to records . . . shall remain in force . . . until they are repealed . . . .

[Emphasis supplied.]


Student Records Defined

Section 228.093, Florida Statutes, relates to student records and reports and various rights of parents, guardians and students concerning those records. This section, which is substantially similar to Title 20 United States Code Section 1232g, the Family Education Rights and Privacy Act, was enacted in 1977. This section was in place prior to the adoption of Section 24, Article I of the State Constitution. See, Sections 1 and 4, Chapter 77-60, Laws of Florida.

Section 228.093(2)(e), Florida Statutes, provides the following definition for student records.

"Records" and "reports" mean any and all official records, files, and data directly related to pupils and students which are created, maintained, and used by public educational institutions, including all material that is incorporated into each pupil's or student's cumulative record folder and intended for school use or to be available to parties outside the school or school system for legitimate educational or research purposes. Materials which shall be considered as part of a pupil's or student's record includes, but are not necessarily limited to: identifying data, including a student's social security number; academic work completed; level of achievement records, including grades and standardized achievement test scores; attendance data; scores on standardized intelligence, aptitude, and psychological tests; interest 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, including, but not limited to, handwriting, typewriting, print magnetic tapes, film, microfilm, and microfiche, and maintained and used by and educational agency or institution or by a person acting for such agency or institution . . . .

[Emphasis supplied.] The records requested in this case and outlined above meet this definition and, therefore, are student records.


Student Records Confidential and Exempt

Section 228.093(3)(d), Florida Statutes, provides in pertinent part the following limitation to the access of student records.

Right of Privacy.--Every pupil or student shall have a right of privacy with respect to the educational records kept on him or her. 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). No state or local educational agency, board, public school, area technical center, community college, or institution of higher education in the State University System shall permit the release of such records, reports, or information without the written consent of the pupil's or student's parent or guardian, or of the pupil or student himself or herself if he or she is qualified as provided in this subsection, to any individual, agency, or organization. . . .

[Emphasis supplied.] Exemptions to this right are provided at Section 228.093(3)(d)1-13, Florida Statutes, but are not relevant to the instant requests.


Florida State University v. Hatton

In 1995, John W. Hatton, a student at the Florida State University, challenged the provisions of Rule 6C2-3.004, Florida Administrative Code, relating to the "Student Conduct Code" and its enforcement. As part of the rule challenge, Mr. Hatton subpoenaed the final orders applying to all Student Conduct Code cases of all Florida State students for the previous two years. Florida State moved to quash the subpoena. Thereafter, the lower tribunal modified the subpoena to allow the university to produce at hearing the records sought "'with any and all information by which a student could be identified redacted from the orders.'"

The university appealed this non-final order to the First District Court of Appeal. Mr. Hatton filed a "Response to Order to Show Cause." Both the parties and the First District squarely addressed the application of the requirements of Section 119.07(1), Florida Statutes, to student records in light of the provisions of Section 228.093, Florida Statutes. The Court found that student records are confidential and exempt from the provisions of Section 119.07(1), Florida Statutes. Florida State University v. Hatton, 672 So.2d 578 (Fla 1st DCA 1996). Attachment 2. In part, the Court found:

Section 228.093(3)(d), Florida Statutes, specifically exempts these records [student records as defined at Section 228.093(2)(e), Florida Statutes] from the provisions of the Public Records Act, section 119.07(1), Florida Statutes. As stated by this court, "[i]t is a fundamental principal of law that when general [Section 119.07, Florida Statutes] and specific [Section 228.093(3)(d), Florida Statutes] enactments are incongruous, the specific statute controls."

[Parenthetical supplied; citations omitted.] Hatton at 580.


Redaction

The right of privacy set forth in Section 228.093(3)(d), Florida Statutes, attaches to the entire student record which personally identifies one or more students and which is created, maintained and used by public educational institutions. Hatton at 578. As such, the right of privacy attaches to all the records sought in this request. As in Hatton, Mr. Holmes requests that the data concerning McKay Scholarship recipients be edited to delete certain identifying information, thus rendering the edited product nonexempt.

Presumably, in support of this request, Mr. Holmes relies on Section 119.07(2)(a), Florida Statutes. That section provides the following.

A person who has custody of a public record and who asserts that an exemption provided in subsection (3) or in a general or special law applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination. If the person who has custody of a public record contends that the record or part of it is exempt from inspection and examination, he or she shall state the basis of the exemption which he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he or she shall state in writing and with particularity the reasons for the conclusion that the records are exempt.

However, Section 119.07(2)(a), Florida Statutes, does not apply to Mr. Holmes' request for several reasons.

First, the records at issue are student records as defined at Section 228.093(2)(e), Florida Statutes. Student records are exempt from the provisions of Section 119.07, Florida Statutes. Additionally, the records are confidential and may not be released without the required consent except as authorized by the provisions of Section 228.093(3)(d), Florida Statutes. See, Hatton; Cf. Marston v. Gainesville Sun Pub. Co., Inc., 341 So.2d 738 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 171 (Fla. 1977)(newspaper not permitted access to university student honor court transcripts on theory that proceedings were 'public meeting' when transcript was designated as limited access record). In this way, student records are analogous to patient medical records which may not be disclosed without consent of the patient, except as provided by statute. Section 395.3025, Florida Statutes. None of the exemptions to the consent requirement provided at Section 228.093(3)(d), Florida Statutes, applies to Mr. Holmes' request.

Second, Section 228.093(3)(a)2, Florida Statutes, specifically addresses redaction and provides in pertinent part the following.

[The] parent, guardian, pupil, or student shall have the right, upon request, to be shown any record or report relating to such pupil or student maintained by any public educational institution. When the record or report includes information on more than one pupil or student, the parent guardian, pupil or student shall be entitled to receive, or to be informed of, only that part of the record or report which pertains to the pupil or student who is the subject of the request. . . .

Thus, a student record may only be redacted and released to a parent or guardian of a student or an eligible student when that student is one of the subjects of a record pertaining to more than one student. This is the only circumstance in which the creation and dissemination of a redacted student record is permitted under Section 228.093, Florida Statutes. Again, when the general (Section 119.07(2)(a), Florida Statutes) and the specific (Section 228.093(3)(a)(2), Florida Statutes) are incongruous, the specific controls. Hatton at 579 and 580.

Additionally, there is a more general problem concerning redaction of the student records: What information should be redacted to ensure the privacy rights at issue? Even if redaction were permitted for a student's name and student number (social security number), there are other identifying factors contained in the data requested, such as the nature of the student's disability, race/ethnicity, gender, and free or reduced lunch eligibility, which, if released, could identify a student.


Creation of New Records

To the extent Mr. Holmes' request would require the Department to amend current records and/or create a new ones in order to provide the desired information, the request is beyond the scope of Section 119.07(1), Florida Statutes. Wooton v. Cook, 590 So.2d 1039 (Fla 1st DCA 1991). Cf. Seigle v. Barry, 422 So.2d 63 (Fla 4th DCA 1982), review denied, 431 So.2d 988 (Fla. 1983)(a public records request may not require an agency to reorder the information or to furnish the information by segregated geographic areas, if the information is not maintained in that fashion).


Summaries

The Department makes available to the public summary information similar to that requested by Mr. Holmes. The summaries do not compromise any privacy right which a parent, guardian or eligible student may have. The Hatton court specifically sanctioned the use of summaries in lieu of releasing raw data, which it determined were confidential and exempt student records. Hatton at 580. Cf. Naglak v. Pennsylvania State University, 133 F.R.D. 18 (M.D.Penn. 1990)(approving submission of requested student information--protected by federal Family Educational and Privacy Rights Act--in statistical, summary form). However, while the Department may provide existing summary data in response to a public records request, it has no obligation to create a summary in response to a public records request. Wooton; Seigle.


Substantial Privacy Interest

The Legislature has accorded a substantial privacy interest in student records to the subject students and their parents, as well as to education agencies, including the Department.2
Mr. Holmes is attempting to obtain student records through a public records request under Section 119.07(1), Florida Statutes. As stated above, Section 119.07, Florida Statutes, does not apply to student records. Additionally, student records are confidential and may not be released absent the required consent without specific statutory authorization. Section 228.093(3)(d), Florida Statutes; Hatton.

Section 228.093(3)(d), Florida Statutes, provides who may have access to student records without consent. Included in that list are school district officials and the Auditor General who have a legitimate interest in the information in connection with their official duties. In order for a person or entity not specifically listed in the statute to obtain access to student records without consent, the person or entity must demonstrate its need outweighs that of the substantial privacy interest. Hatton at 580; Cf. Zaal v. State of Maryland, 326 Md. 54, 602 A.2d 1247 (1992). As in Hatton, this is a case where the substantial privacy interests in the student records which the Legislature has accorded to the students and their parents, outweighs whatever interest Mr. Holmes' foundation may have in the student records.

CONCLUSIONS:

In the instant case, the records requested by Mr. Holmes are student records as defined at Section 228.093(2)(e), Florida Statutes. The entire content of a student record is confidential and exempt from the provisions of Chapter 119, Florida Statutes, and in particular Section 119.07, Florida Statutes. Without the required consent, nothing in a student record may be released except as otherwise authorized in Section 228.093, Florida Statutes. This determination is based on application of Subsections 24(c) and (d), Article I of the State Constitution; Subsections 228.093(2)(e), (3)(a)2, and (3)(d), Florida Statutes; Title 20 United States Code Section 1232g, et seq.; and, Florida State University v. Hatton, 672 So.2d 576 (Fla. 1st DCA 1996).

Redaction of a student record is not an option in response to a public records request under Section 119.07, Florida Statutes. Section 228.093(3)(a)2, Florida Statutes, provides that a redacted student record may be produced and released only to a parent or guardian of a student or an eligible student when that student is the subject of the student record. Hatton at 579 and 580.

The Department routinely prepares summaries of the information at issue. The summaries do not in anyway compromise any privacy right a parent, guardian, or eligible student may have in the student records upon which the summaries are based. The Hatton court specifically sanctioned the use of summaries in lieu of releasing confidential and exempt student records. Hatton at 580.

1 As used herein, the term "student record" shall be synonymous with the terms "records" and "reports" as defined at Section 228.093(2)(e), Florida Statutes.

2 Educational agencies are subject to penalties which may ensue from improper disclosure as provided in Section 228.093(5), Florida Statutes, and Title 20 United States Code Section 1232g, et seq.

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