Can I get records about individual special-education students through a Delaware public records request?

Official title

14-IB05 08/27/14 FOIA Opinion Letter to Mr. Wells re: FOIA Complaint Concerning the Department of Education

Plain-English summary

A requester asked the Delaware Department of Education (DOE) for records showing how DOE verifies that special-education funding units in five New Castle County school districts were used as the law requires. DOE handed over its verification-procedure manuals and related correspondence, but withheld the underlying documents it had actually reviewed for a small group of students, which were Individual Educational Plans (IEPs) and similar records containing personally identifiable information. The requester argued DOE had not fully complied with the FOIA request.

The AG sided with DOE. Because the group of special-education students at issue was small (DOE's own cutoff is 15 students per category before a "cell" becomes small enough to risk re-identification), the opinion found that redacting names and ID numbers would not have been enough. The remaining details, grade level and disability designation broken down by district, could still let someone figure out which student a record was about. Relying on FERPA, its implementing regulations, and Delaware's own student-records and public-records-exemption statutes, the AG concluded these particular records were not "public records" subject to FOIA at all, so DOE did not violate the law by withholding them.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a school district refuse a public records request for special-education student files?

According to this opinion, yes, when the group of students is small enough that removing names and ID numbers would not stop someone from figuring out who the records are about. FERPA and Delaware's own student-records confidentiality statute both treat that kind of "personally identifiable" information as exempt from disclosure.

Does redacting a student's name and ID number always make a record safe to release?

Not necessarily. The opinion applies federal guidance treating information as "personally identifiable" whenever a small enough group size, here fewer than 15 students in a district-and-category breakdown, makes an individual "easily traceable" even without a name attached.

Who decides how small a group has to be before student data counts as identifiable?

The opinion notes that under federal guidance, the releasing agency itself is responsible for analyzing its own data and choosing methods that prevent identification. DOE had adopted a minimum group size of fifteen students as its own threshold for redacted disclosures.

What records did the requester actually get in this case?

DOE provided its verification-procedure manuals for 2012 and 2013, correspondence sent to several school districts and charter schools about funding-unit disallowances, and Excel spreadsheets showing disallowances and their financial impact by district. Only the underlying student-level review documents for the small group of affected students were withheld.

Background and statutory framework

Delaware's FOIA covers "public records" broadly, 29 Del. C. §§ 10001, et seq., but the definition itself, 29 Del. C. § 10002(l), excludes records whose disclosure "would constitute an invasion of personal privacy" under state or federal privacy law, 29 Del. C. § 10002(l)(1), and records "specifically exempted from public disclosure by statute," 29 Del. C. § 10002(l)(6). The opinion applies both prongs through the federal Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, and its implementing regulations, 34 CFR Part 99, alongside Delaware's own school-records confidentiality statute, 14 Del. C. § 4111, and companion regulation, 14 Del. Admin Code § 927-10.0.

The underlying records related to DOE's verification, required under 14 Del. C. § 1703, that special-education funding units generated by students in five New Castle County school districts were used as the law requires. That verification process involved reviewing IEPs and other documents containing personally identifiable information for a small number of students. The opinion relies on federal guidance the U.S. Department of Education gave the Tennessee Department of Education, quoting the rule that information is "personally identifiable" if cell size or other details would make a student's identity "easily traceable," 34 CFR § 99.3, and citing 2008 federal regulations placing responsibility on the releasing agency to choose methods that fully prevent identification. DOE's own minimum reporting threshold of fifteen students per category was the standard applied here, and the opinion found the number of affected students fell below that threshold, so the records could not be safely redacted and released.

Citations and references

Statutes:

• 29 Del. C. §§ 10001, et seq. (Delaware's Freedom of Information Act)
• 29 Del. C. § 10002(l) (defines "public record")
• 29 Del. C. § 10002(l)(1) (exemption for records whose disclosure would invade personal privacy)
• 29 Del. C. § 10002(l)(6) (exemption for records specifically exempted by statute)
• 20 U.S.C. §1232g (Family Educational Rights and Privacy Act, FERPA)
• 34 CFR Part 99 (FERPA implementing regulations)
• 34 CFR § 99.3 (defines "personally identifiable" information)
• 14 Del. C. § 4111 (Delaware statute on disclosure of pupils' school records)
• 14 Del. Admin Code § 927-10.0 (Confidentiality of Personally Identifiable Data, Information and Records)
• 14 Del. C. § 1703 (requirement to verify special education funding unit usage)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2014/08/27/14-ib05-082714-foia-opinion-letter-to-mr-wells-re-foia-complaint-concerning-the-department-of-education/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. l4-IB05

August 27, 2014

VIA EMAIL AND REGULAR MAIL

Mr. John Wells

2719 Barnsley Road

Wilmington, Delaware 19808

[email protected]

Re: FOIA Complaint Concerning the Delaware Department of Education

Dear Mr. Wells:

I write with our determination with respect to your petition dated June 2, 2014 (the "Petition"). You asked this Office to determine whether the Delaware Department of Education (the "DOE") violated the "open records" requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001, et seq. ("FOIA"), by failing to provide you with access to certain public records relating to "Verifications Procedures for Special Education Funding Units and Local Assurances" (the "FOIA Request"). The issue is whether any documents that have not already been produced by the DOE are "public records" that are subject to examination under FOIA. For the reasons discussed below, this Office has determined that the documents withheld by DOE are not subject to disclosure pursuant to FOIA.

I. BACKGROUND

On December 16, 2013, you submitted to the DOE your FOIA Request for documents relating to "Verifications Procedures for Special Education Funding Units and Local Assurances." The DOE's initial response was made on January 2, 2014. A supplemental response followed on May 19, 2014 when an updated "Needs Based Funding" document was completed by DOE. You assert that the DOE has not fully complied with your FOIA Request. The DOE asserts it has provided you with all documents you seek, with the exception of certain documents that may not be disclosed pursuant to applicable law.

II. APPLICABLE LAW

The statutes and regulations cited by the DOE in support of its position include the federal Family Educational Rights and Privacy Act ("FERPA"), Delaware law, and Delaware regulations as they apply to special education students. Specifically, the applicable statutes and regulations are FERPA, 20 U.S.C. §1232g, regulations promulgated pursuant to FERPA, 34 CFR Part 99, 14 Del. C. § 4111 ("Disclosure of pupils' school records"), and 14 Del. Admin Code § 927-10.0 ("Confidentiality of Personally Identifiable Data, Information and Records"). If the DOE is correct, some documents that would otherwise be responsive to your FOIA Request are not "public records" under 29 Del. C. § 10002(l). More specifically, student records are exempted from the definition of "public records" under 29 Del. C. § 10002(l)(1) if their disclosure "would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." Student records are also exempted under 29 Del. C. § 10002(l)(6) as "records specifically exempted from public disclosure by statute."

In response to your FOIA Request, you were provided with the following:

Request A: Copy of the guidelines/regulation used by the DOE to determine if units generated by special education students are used as required by 14 Del. C. § 1703.

Production: The DOE provided you with the "Verification Procedures for Special Education Funding Units and Local Assurances" manuals dated September 2012 and September 2013. These procedures guide the DOE's administration and verification of the September 30, 2012 and September 30, 2013 unit count for students with disabilities.

Request B: Copies of all documents reviewed and analyzed by DOE to determine if units generated by special education students in the five (5) school districts in New Castle County were used as required by 14 Del. C. § 1703 in the school years 2011-2012, 2012-2013, and 2013-2014.

Production: The documents reviewed and analyzed by the DOE consisted of Individual Educational Plans ("IEPs") and documents containing other personally identifiable information pertaining to specific students. Given the small number of students whose records would otherwise be responsive to your FOIA Request, it is not permissible to produce these documents even after redacting the names and student number identifiers, inasmuch as the remaining information could still lead to identification of individual students. As the U.S. Department of Education advised the Tennessee Department of Education in a letter dated November 14, 2004,

As a reminder, in reporting information, if cell size or other information would make a student's identity "easily traceable," that information would be considered "personally identifiable." See 34 CFR § 99.3. The educational agency or institution should use generally accepted statistical principles and methods to ensure that the data are reported in a manner that fully prevents the identification of students. If that cannot be done, the data must not be reported.

The DOE has established fifteen (15) as the minimum cell size for producing redacted student records. (See U.S. DOE Office of Planning, Evaluation, and Policy Development, Final Regulations published in Federal Register on December 9, 2008 (Volume 73, Number 237)) stating that "[t]he releasing party is responsible for conducting its own analysis and identifying the best methods to protect the confidentiality of information from education records it chooses to release. In this instance, the number of Special Education students by grade and designation ("Basic" or "Complex") in each District is small enough (fifteen or fewer) to run the risk of personal identification of these students.

Request C: Copies of all documents showing the actions taken by DOE as required by reference cited above in 2011-2012, 2012-2013, and 2013-2014.

Production: The DOE reasonably understood this request to refer to the five (5) School Districts in New Castle County as referenced in Request B, for which there were no responsive documents. The DOE nevertheless produced letters and attachments sent in May 2014 (five months after the Mr. Wells' request) to Cape Henlopen School District, Colonial School District, Family Foundations Academy, and Moyer Academy.

You also requested copies of all documents the DOE forwarded to the State Auditor of Accounts and other agencies as required by law in 2011-2012, 2012-2013, and 2013-2014, but no responsive documents exist. The DOE voluntarily produced its 2013 and 2014 NBF Excel sheets by District that detail disallowance(s) of student(s) the DOE identified as reported in a special education unit that did not meet the statutory requirements of that unit based on the district/charter school's explanation and/or formal audit results, as well as the financial impacts of the disallowance(s).

III. CONCLUSION

The documents withheld by the DOE are not public records. Applicable State and federal statutes and regulations prohibit the release of records that could be identified to an individual student. Given the guidance provided by the U.S. Department of Education to the Tennessee Department of Education, the DOE is responsible for conducting its own analysis and identifying the best methods to protect the confidentiality of information from education records it chooses to release. Applying the standards set by the U.S. Department of Education, the DOE cannot produce the documents identified in Request B of your FOIA Request.

Very truly yours,

/s/ Edward K. Black

Edward K. Black

Deputy Attorney General

Approved:

/s/ Timothy P. Mullaney, Sr.

Timothy P. Mullaney, Sr.

Acting Chief Deputy Attorney General

cc: Ms. Allison Reardon, State Solicitor

Ms. Ilona Kirshon, Deputy Attorney General