Federal judge clarifies order regarding release of student records

Objections pour in over possible student data release

After California parents were recently notified that their children's records might be released as part of a federal lawsuit over special education, the judge handling the case was so inundated with objections that she said she "cannot realistically review" them.

In a new ruling issued Tuesday, March 1, U.S. District Judge Kimberly J. Mueller in Sacramento also clarified that no records have yet been released. She also tightened up security measures for some of the most sensitive records that may be released.

The judge said that the response to the court notice that the records might be released shows how outdated the federal law is that requires it.

Many districts around the state had recently informed parents that information about their students might be released and provided information about how to object to the release.

The student records were requested as part of a lawsuit filed in federal court in Sacramento in April 2012 by two organizations, the Morgan Hill Concerned Parents Association and the California Concerned Parents Association, which represent parents of children with disabilities.

The suit, filed against the California Department of Education, claims state schools are not complying with federal laws about educating students with disabilities.

On Feb. 29, Judge Mueller held a hearing on questions involving the release of information, and issued a new ruling on March 1.

"Given the number of objections received, and the objections that will continue to be received, the court has not and cannot realistically review the objections individually," she wrote.

Judge Mueller said the objections, which can be sent in until April 1, are to be "preserved" by storing them "in sealed boxes stored in a secure room until further order of the court."

The ruling said that while a notice of the records release is legally required, as is offering the opportunity to object to the release, "consent of those persons whose information is contained in databases is not required where, as here, disclosure is court-ordered and subject to a protective order."

The March 1 ruling gave further details about what led to the warning about the records release. Judge Mueller wrote that FERPA (the Family Educational Rights and Privacy Act) requires "notice prior to disclosure of education records, including those that contain personal identifying information." Because lawyers in the case had asked for confidential records, the judge ordered the notice, and said it could be posted online. The wording of the notice had been agreed upon by the court.

"The response to the notice thus far demonstrates," Judge Mueller wrote, "on the one hand, the imperfect fit between the FERPA regulation crafted in and largely unchanged since the 1970s, before the internet as we know it was a gleam in any but an academics' eye, and on the other, the social media environment in which information is churned and transformed in a nanosecond or less."

The judge wrote that she learned from evidence presented at the hearing that "at least some of the (objections) the court has received have been completed based on the incomplete or misleading messages that have been conveyed about the FERPA notice, its purpose, and its context within this litigation."

Judge Mueller said that while no information has been released yet, procedures are in place in case any requests for confidential student information are approved.

The safeguards were developed by a computer forensics expert, Winston Krone, approved of by both parties to the lawsuit.

The notice posted on the Department of Education website said that information may be released on any child who attended public schools in California after Jan. 1, 2008. An earlier order by Judge Mueller said the information will not be released "to anyone other than the parties (to the lawsuit), their attorneys and consultants, and the Court," and will be returned or destroyed when the lawsuit is concluded.

The notice says that types of information stored on the Department of Education's databases and network drives that could be released include "name, Social Security number, home address, demographics, course information, statewide assessment results, teacher demographics, program information, behavior and discipline information, progress reports, special education assessment plans, special education assessments/evaluations, Individualized Education Programs (IEPs), records pertaining to health, mental health and medical information, student statewide identifiers (SSID), attendance statistics, information on suspensions and expulsions, and results on state tests."

State Superintendent of Public Instruction Tom Torlakson said in a press release on Feb. 17 that the Department of Education has for nearly three years "fought requests by the plaintiffs to produce documents that contain the personally identifiable information of students and has produced documents with that information removed."

But the California Concerned Parents Association, on its website, said it has worked for two years with the Department of Education to provide "these materials in an anonymized form" but that the department "persistently declined."

The March 1 ruling includes a further safeguard for the California Longitudinal Pupil Achievement Data System (CALPADS), which it calls "the most sensitive" information that is being requested "because it contains the largest quantity of personal identifying information." If that database is approved for release, it would remain with the Department of Education, which would have to let representatives of the groups filing the lawsuit search the database for the information they had requested.

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