IDEA Complaint Decision 99-046

On July 30, 1999 (letter dated July 26, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Gillett School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 115.762(3)(g) and 115.90(1), Wis. Stats, the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. As part of this investigation, department staff reviewed relevant pupil records and written materials submitted by the complaint, the interim superintendent, school staff members, and the principal of the child's school. Department staff conducted telephone interviews with the complainant and the prinicipal.

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ISSUE:

Did the district during March of 1999 improperly disclose, without parental consent, personally identifiable information from the complainant's child's pupil records to the public including school board members, school district staff during a school board meeting, in a letter from the principal, and in the local newspaper?

APPLICABLE STATUTES AND RULES:

Section 115.28, Wisconsin Statutes
General duties.

The state superintendent shall:

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(7) LICENSING OF TEACHERS. (a) License all teachers for the public schools of the state * * * .

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Section 118.125, Wisconsin Statutes
Definitions.

In this subchapter:

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(d) "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under s. 115.28 (7) to hold a certificate, license or permit if such records and notes are not available to others, nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

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(2) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m). The school board shall adopt regulations to maintain the confidentiality of such records.

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(d) Pupil records shall be made available to persons employed by the school district which the pupil attends who are required by the department under s. 115.28(7) to hold a license and other school district officials who have been determined by the school board to have legitimate educational interests, including safety interests, in the pupil records.

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PI 3.01, Wisconsin Administrative Code
Definitions.

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(44) "Teacher" means a licensed professional school employe whose work includes the exercise of any evaluation function for compensation including instructing pupils or administering, directing, or supervising any educational activity.

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34 CFR 300.560 Definitions.

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(b) Education records means the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).
(c) Participating agency means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the Act.

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34 CFR 300.572 Safeguards.

(a) Each participating agency shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

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34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Disclosure" means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means.

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"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.

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34 CFR 99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by s. 99.30 if the disclosure meets one or more of the following conditions:
(1) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate education interests.

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FINDINGS OF FACT:

The complainant's child is an 18-year-old youth with a cognitive disability who resides in the Suring School District and attends high school in the Gillett School District. The complainant alleges that the Gillett School District disclosed personally identifiable information about her child at a March 18, 1999, school board meeting and when copies of a letter to her from the high school principal were sent to administrative school staff and board members. The complainant also maintains that personally identifiable information relating to her child was published in the local newspaper as a consequence of the school board meeting.

The complainant has been appointed the guardian of the youth whose education is the subject of this complaint. As guardian, the complainant requested that the district comply with a do not resuscitate (DNR) order issued by a physician relating to the youth. In a letter to the complainant dated March 19, 1999, the principal of the child's school indicates that the Gillett School District had received the DNR order submitted by complainant. The letter continues by describing what steps the district would take to respond to this request. The letter does not disclose any other information about the DNR order or other health care matters related to this student. This letter contains personally identifiable information relating to the youth and his family. Courtesy copies of the letter were sent to the administrators of the youth's districts of residence and attendance, the administrator of CESA #8 that provides educational services to the youth, and the Program Support Teacher/Case Manager employed by CESA #8 who is assigned to the Gillett School District. These individuals are licensed as teachers under state rule. Although the letter indicates that school board members received a copy of the letter, during a telephone interview, the principal indicated that copies were not distributed to them.

The district's response to the complaint includes letters from three school staff who attended the March 18 school board meeting. These letters assert that the general topic of how the district should respond when a parent requests that the district comply with a DNR order was discussed and that no personally identifiable information was disclosed during that discussion. School board minutes relating to this portion of the meeting do not disclose personally identifiable information. During his telephone interview, the principal maintained that the youth was not identified during the meeting and that no personally identifiable information about him or his family was disclosed at the school board meeting. The complainant did not attend the meeting. The article published in the local paper following the school board meeting includes a reference to board action relating to a do not resuscitate (DNR) order for a student. No personally identifiable information relating to the DNR order was included in the article.

CONCLUSION:

A school district must preserve the confidentiality of personally identifiable information from a child's education records. Education records are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. Special education records and behavior records are confidential education records. Parental consent must be obtained before disclosure of personally identifiable information from the record to anyone other than school officials, unless specific exceptions apply.

Here, the district did not disclose personally identifiable information relating to this youth during the March 18, 1999, school board meeting. The board did discuss the topic of DNR orders, but no reference to a particular student was made. The article published in the local newspaper based on the board meeting also did not contain personally identifiable information relating to the complainant's child. The letter from the principal to the complainant did contain personally identifiable information regarding her child. Under Wisconsin law, staff holding teacher licenses are permitted access to the information contained in the letter. Licensed administrators are included in the definition of teacher for licensing purposes. The individuals who received copies of the letter hold licenses which permit them access to the personally identifiable information contained the March 19 letter. The complaint is not substantiated.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
9/28/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720