According to a Tulsa World article, some Tulsa-area school officials are not happy that a packet of information released in conjunction with the State Board of Education meeting this week includes some information regarding students appealing the Achieving Classroom Excellence (ACE) requirements in order to get a diploma. In order to file the appeal, the student or his or her parent had to sign a waiver exempting the records from the Family Educational Rights and Privacy Act (FERPA) so that their records could be discussed at a State Board of Education meeting. It clearly states in the waiver access to the records will be granted “for the purposes of discussion and consideration in meetings open to the public.”
Until recently, reporters attending State Board of Education meetings would be handed a packet of materials just before a meeting started containing the information Board members received on each agenda item. At the request of reporters, that information was put online last year. Now, not only do reporters get to see things like proposed line items for the Activities Fund budget, the public can as well. Most information given to board members is subject to the Open Records Act so there should be no objection to putting that information online.
I asked Department of Education spokesman Damon Gardenhire about the article and he provided the same comment to me that he gave to the Tulsa World, a few snippets of which appear in the story:
The Oklahoma State Department of Education is committed to remaining as transparent as possible with respect to open meetings and open records. There is a longstanding precedent by the department for providing board materials at meetings to reporters and members of the public. After multiple requests from media outlets (including requests from the Tulsa World) and from other stakeholders, we began providing these board materials online last year. The appeals process for ACE before the State Board is a quasi-judicial proceeding of the Board that occurs in an open meeting. The very subject matter of the appeal involves a student’s academic record. Appeals of every kind filed with the department are an open record and ACE appeals are no exception. Students, parents or legal guardians are not obligated to sign the FERPA waiver or to bring the student’s academic record into the public eye. However, to appeal graduation requirements under the law, a FERPA privacy waiver is required in order for a student’s records to be provided and considered by the Board for the purposes of granting or denying a waiver of ACE graduation requirements. Once a FERPA privacy waiver has been have signed, the student’s academic record becomes an open record for discussion and consideration in an open meeting. The record in an appeal before a state agency is akin to evidence that is part of a public record in a quasi-judicial process. While deliberations by board members are protected by executive session (much as a judge or jury might privately deliberate over public evidence) the records themselves remain public. Given that such records are subject to open records requirements, the agency made the information available online as it has routinely done for other board meetings. To do otherwise would thwart transparency.
It should be noted that the student records are scanned images of the documents. As such, they would not turn up as results to a search engine query. Someone would have to know that a student filed an appeal that was heard before the State Board of Education in order to know the documents existed.
I’m not a lawyer, but I do know that if a document is subject to an Open Records Act request, making it available online is a good idea, not a bad one.