Forecaster Forum: Courts reject schools' blanket use of privacy statute
It should be clear that just as I represent the news media, which your reporting on child restraints has mentioned, Peter C. Felmly and his firm represent many Maine school districts as well as trade associations that represent school districts.
Substantively, I disagree with Mr. Felmly's interpretation of Maine and federal law. The default rule in Maine is that all public records are open to the public on request, unless within an exception to the public records law. The question is, therefore, whether an exception to the default rule applies to school records on child restraints.
As I read Maine law, there is no exception to the public records law that requires that schools keep such records confidential provided that information identifying particular students can be excised, or redacted, from the records. But don't take my word for it.
Several federal courts have considered the federal statute, FERPA, on which the schools rely in asserting confidentiality. In 2008, a federal judge in New York wrote, "(T)here is nothing in FERPA that would prohibit Defendants from releasing education records that had all 'personally identifiable information' redacted." In 2002, the Sixth Circuit Court of Appeals in Ohio wrote, "Nothing in the FERPA would prevent the Universities from releasing properly redacted records." It stands to reason that a Maine state or federal court, faced with the same issue, would reach the same conclusion.
As for policy considerations, the Legislature has already made a policy judgment that records concerning public business – including that of our public schools, which are funded by millions of dollars in taxpayer money – should be open to the public. How else is the public to know whether schools are following good practices and exercising their responsibilities with due care? How is the public to trust the performance of our schools if all information on schools is protected by blanket confidentiality?
A concern about protecting student identities is legitimate and real. At some point, however, one wonders whether a purported concern about disclosure of the identity of students is being used as an excuse to withhold information that could be disclosed without naming names.
The Forecaster is right to ask tough questions and push for access to public records on what our schools are up to.
Sigmund D. Schutz is an attorney at Preti Flaherty in Portland, where his clients include the Maine Press Association.