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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.
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.
The question arises, may the information requested be released?
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.
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:
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.
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.
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.
[Emphasis supplied.] The records requested in this case and outlined above meet this definition and, therefore, are student records.
Section 228.093(3)(d), Florida Statutes, provides in pertinent part the following limitation to the access of student records.
[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.
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:
[Parenthetical supplied; citations omitted.] Hatton at 580.
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.
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.
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.
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).
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.
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
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.
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.