EdLawConnect Blog

To enhance school safety, some school districts have established “tip” lines where students may send emails or text messages to the district about bullying, drugs, alcohol use, fights, or anything else that may adversely impact the health, safety, or welfare of students.  A legal issue that arises from these programs is whether the information in the emails and text messages must be disclosed under the California Public Records Act (CPRA).

The purpose of the CPRA (Government Code § 6250 et seq.) is to provide public access to information concerning the conduct of the people’s business.  All records maintained by public agencies are public records, except those that are statutorily exempted.  The CPRA requires a public agency to make public records available, upon request, in any electronic format in which the agency maintains the information.  Thus, emails and text messages sent from students to a school district would appear to be electronically stored public records.  However, the CPRA permits withholding of records that are exempted or privileged under federal or state law, including privileges under the California Evidence Code.  (Government Code § 6254(k).)  For a substantive discussion on this issue, please refer to the previous March 14, 2014 post regarding obligations to produce electronic records under the Public Records Act.

Records maintained by a school district relating to identifiable students are “educational records” or “pupil records” under the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and California Education Code section 49060 et seq.  Disclosure of these records without parental consent is, with certain limited exceptions, prohibited under these statutes.  Thus, student tips transmitted via email or text messages may be confidential “educational records” or “pupil records” exempt from disclosure under the CPRA.

Moreover, a school district, as a public entity, has a privilege to refuse to disclose “official information.”  (Evidence Code § 1040.)  “Official information” includes information protected by a state or federal statutory privilege, and information that would harm the public interest if disclosed (when the need to preserve the confidentiality of the information outweighs the necessity for disclosure in the interest of justice).  (White v. Superior Court (2002) 102 Cal.App.4th Supp. 1.)  The official information privilege applies under the CPRA’s exemptions and may apply to a school district’s tip line reports.

Also relevant to a tip line program is Education Code section 49335, which requires the State Superintendent of Public Instruction to adopt a system to shield the identity of student informants who report the presence of injurious weapons.  While section 49335 does not require districts to keep informants’ identities confidential, it may be interpreted as a statement of the Legislature’s intent with respect to reports about injurious weapons.

Students’ emails and text messages may also fall under the Government Code section 6255 “catchall” exemption, which allows a public agency to withhold records if it can demonstrate that the public interest served by withholding the records clearly outweighs the public interest served by disclosure.  (See BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 [unless an individual’s right to privacy outweighs the public’s interest in disclosure, or if disclosure is exempted by statute, a record retained by a public agency in the course of business must be disclosed upon request].)  Districts should be aware of, but not rely solely on the catchall exception; similar protections are afforded through the federal and state law through FERPA and the Education Code.

Practical Guidance

To ensure compliance with student privacy laws and the CPRA, school districts should take precautionary measures before implementing a tip line program:

• Create or update a board policy delineating procedures for monitoring and managing the information received from the tip line; confidentiality of, and lack of anonymity in, disclosures; classification of reports as “education records,” “pupil records,” and “official information,” as appropriate;
• Publicize the policy to students and staff, including the policy’s confidentiality provisions;
• Ensure student statements about incidents involving other students are not released to parents without redaction of all student names except that of the parent’s own child;
• Ensure any employees who manage the tip line comply with applicable mandated reporter requirements;
• Create or revise the job description for employees managing the tip line to encompass the confidential nature of the position in relation to the tip line duties; and
• Consult legal counsel when requests are made for tip line information.