07.03.2013
A Reminder that Emails May Be “Education Records”

Concerned about an instructor’s behavior and teaching methodologies, a student complains through email to a college.  Is the instructor entitled to a copy of the student’s email in its entirety?  A county office of education deletes emails during the course of routine network maintenance.  Is a parent entitled to electronic copies of emails regarding a student?  These are just two of many scenarios that demonstrate how educational institutions may face difficult questions about the applicability of laws such as the Family Educational Rights and Privacy Act (FERPA) when communicating through email and other electronic communications.  Since there are currently no easy answers, it is important to monitor relevant case law, even when nonbinding and arising out of other jurisdictions.

Most recently, a Florida appellate court held a student’s email complaining about a community college professor was “directly related” to the student and therefore the student’s name could be withheld from the professor.  In Rhea v. District Board of Trustees of Santa Fe College (Fla. App. 2013) 109 So.3d 851, an adjunct associate professor was released from employment after approximately four months, following a student’s complaint about his inappropriate classroom behavior, humiliating remarks to students, and unorthodox teaching methodologies. The professor, Rhea, received a copy of the email with the student’s name redacted.  He filed a request under the Florida Public Records Act for an unredacted copy of the email, and the college refused to provide it, citing the Family Educational Records Privacy Act.  (20 U.S.C. § 1232g.)

The District Court of Appeal of Florida disagreed with federal district court decisions determining that student complaints about instructors did not directly relate to students and thus were not “education records” for purposes of privacy requirements under FERPA. (See Ellis v. Cleveland Municipal School District (N.D. Ohio 2004) 309 F.Supp.2d 1019 [student witness statements related to altercations involving substitute teachers “do not implicate FERPA because they do not contain information ‘directly related to a student’” but “are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA”]; Wallace v. Cranbrook Educational Community, No. 05–73446 (E.D. Mich. Sept. 27, 2006) 2006 WL 2796135 [granting, in employment termination case, employee’s motion to compel disclosure of students’ identities because complaints against the employee did not “directly relate to students” and were therefore not “education records” under FERPA]; Briggs v. Board of Trustees Columbus State Community College No. 2:08–CV–644 (S.D. Ohio July 8, 2009) 2009 WL 2047899 [student complaints about a professor did not directly relate to students and thus were not “education records”]; see also Hampton Bays Union Free School District v. Public Employment Relations Board (N.Y.App.Div. 2009) 62 A.D.3d 1066 [documentation relating to probationary teacher’s early termination based on misconduct was subject to disclosure and was not an education record protected under FERPA].)

The federal district court decisions differentiate records that contain information “directly related to a student,” on the one hand, from records that are directly related to a teacher or other school employee and are only “peripherally” or “tangentially” related to a student, on the other. According to these federal authorities, the former are “education records” by definition; the latter are not.  (See, e.g., Ellis, 309 F.Supp.2d at pp. 1022–1023.)

By contrast, the Florida state court in Rhea concluded that although Rhea was the “primary subject” of the student’s email, the email “also directly relates to its student author” and was therefore a protected “education record” under FERPA.

While neither the Florida appellate court decision nor the federal district court decisions from other jurisdictions are binding in California, we can expect this issue to continue to be debated in the lower courts until a California court, a federal Court of Appeals, or the U.S. Supreme Court takes up the question.

In the meantime, school districts should continue to consider statements or complaints lodged by students to be protected educational or pupil records.  The student’s name should be redacted from such records before they are released to an employee, an employee’s legal counsel, the exclusive representative, or anyone else.  Additionally, student statements regarding incidents involving other students should not be released to parents without redaction of all student names except that of the parent’s own child.

As to whether an email, in its electronic form, may constitute a pupil or educational record, a California federal district court addressed this issue in 2009; however, the decision was unpublished and therefore cannot be cited.  In S.A. v. Tulare County Office of Education (E.D. Cal. 2009) 2009 WL 329-6653, the County Office of Education produced hard copies of emails that were maintained in a student’s permanent file upon request by the parent.  The parent then made a demand for electronic copies of email messages related to the student and was told the electronic files had been deleted as part of regular network maintenance.  The parent sued alleging the County Office unlawfully refused to produce and destroyed protected education records. The court held the electronic messages themselves were not “education records” for purposes of FERPA because, while they related to the student, they were not “maintained” by the educational institution.

Because FERPA does not specifically address the character of electronic records or records in which a student lodges a complaint against an employee or other person, these issues will continue to percolate through the courts and potentially the Congress and state legislatures.  We will monitor developments related to the definition of “education records” and related concerns, and continue to provide pertinent updates.

Tags: email, FERPA

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