What are the statutory exemptions relating to education records?
There are statutory exemptions which remove some education records from disclosure. A discussion of exemptions relating to education records follows; for a more complete listing of exemption summaries, please refer to Appendix D.
1. Direct-support organizations
Several statutes exempt information identifying donors to direct-support organizations associated with education agencies. The identity of donors to a direct-support organization of the Department of Education or of a district school board, and all information identifying such donors and prospective donors, are confidential and exempt from the provisions of s. 119.07(1), F.S.; that anonymity is required to be maintained in the auditor's report. See s. 1001.24(4), F.S. (Department of Education direct-support organization); s. 1001.453(4), F.S. (district school board direct-support organization). Cf. 267.1736(9)(a), F.S. (direct-support organization authorized to assist the University of Florida regarding historic preservation and education for the City of St. Augustine).
The identity of donors to a university or community college direct-support organization who wish to remain anonymous is protected by statute which also requires that such anonymity be maintained in the auditor's report. Sections 1004.28(5) and 1004.70(6), F.S. And see s. 1004.71(6), F.S. (statewide community college direct-support organization); s. 1009.983(4), F.S. (Florida Prepaid College Board).
In addition, other records of such organizations are made confidential by statute. All records of university direct-support organizations, other than the auditor's report, management letter, and any supplemental data requested by the Board of Governors, the Auditor General, board of trustees, and the Office of Program Policy Analysis and Government Accountability (OPPAGA) are confidential and exempt from s. 119.07(1), F.S. Section 1004.28(5), F.S. And see s. 1001.24(4), F.S. (records of a direct-support organization of the Department of Education). However, all records of a district school board direct-support organization, other than donor-identifying information, are expressly made subject to Ch. 119, F.S. See s. 1001.453(4), F.S.
Records of community college direct-support organizations, other than the auditor's report, any information necessary for the auditor's report, any information related to the expenditure of funds, and any supplemental data requested by the board of trustees, the Auditor General, and OPPAGA, are confidential and exempt from s. 119.07(1), F.S. Section 1004.70(6), F.S. See Palm Beach Community College Foundation, Inc. v. WFTV, 611 So. 2d 588 (Fla. 4th DCA 1993) (direct-support organization's expense records are public records subject to deletion of donor-identifying information). Cf. AGO 05-27 (Sunshine Law applies to community college direct-support organization as defined in s. 1004.70, F.S.).
Information received by the direct-support organization of the Florida Prepaid College Program that is otherwise confidential or exempt shall retain such status and any sensitive, personal information regarding contract beneficiaries, including their identities, is exempt from disclosure. Section 1009.983(4), F.S.
2. Education personnel records
In the absence of statutory exemption, personnel records of educators are subject to public inspection. For example, the judiciary is not authorized to create an exemption for the home addresses and home telephone numbers of public school system personnel. United Teachers of Dade v. School Board of Dade County, No. 92-17803 (01) (Fla. 11th Cir. Ct. Nov. 30, 1992). However, there are a number of statutory exemptions which apply to school personnel records. See Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d 1151 (Fla. 1st DCA 2005) (federal law does not authorize newspaper to obtain social security numbers in state teacher certification database).
a. Public school personnel
Complaints against a teacher or administrator and all information obtained by the Department of Education pursuant to its investigation of the complaint are exempt from s. 119.07(1), F.S., until the conclusion of the preliminary investigation, the investigation ceases to be active, or as otherwise provided by s. 1012.798(6), F.S. Section 1012.796(4), F.S. The complaint and material assembled during the investigation, however, may be inspected and copied by the individual under investigation or his designee after the investigation is concluded but prior to the determination of probable cause. Id. Information obtained by the recovery network program within the Department of Education from a treatment provider which relates to a person's impairment and participation in the program is confidential and exempt from s. 119.07(1), F.S. Section 1012.798(9), F.S.
Public school system employee personnel files, like those of other government employees, are generally open to public inspection, subject to certain exceptions as set forth in s. 1012.31(3), complaint are confidential until the preliminary investigation is either concluded or ceases to be active. Section 1012.31(3)(a)1., F.S. See AGO 91-75 (while exemption applies when a complaint against a district employee has been filed and an investigation against that employee ensues, it does not provide a basis for withholding documents compiled in a general investigation of school departments). And see AGO 08-24 (names, home addresses, telephone numbers, photographs and places of employment of spouses of active or former law enforcement personnel exempt under s. 119.071(4)(d)1., F.S., and maintained in school district records, are exempt from disclosure and are not required to be provided to certified bargaining representative under s. 447.203, F.S.). Cf. Johnson v. Deluz, 875 So. 2d 1 (Fla. 4th DCA 2004) (student identifying information must be redacted from public report of investigation of school principal).
Employee evaluations prepared pursuant to cited statutes are confidential and exempt from disclosure until the end of the school year immediately following the school year during which the evaluation was made, provided that no evaluations made prior to July 1, 1983, shall be made public. Section 1012.31(3)(a)2., F.S. However, information obtained from evaluation forms circulated by the local teacher's union to its members that is provided unsolicited to the superintendent is not exempt under this statute. AGO 94-94. Written comments and performance memoranda prepared by individual school board members regarding an appointed superintendent are not exempt from disclosure. AGO 97-23.
Employee payroll deduction records and medical records are confidential and exempt. Section 1012.31(3)(a)4. and 5., F.S. See AGO 09-11 (tax information of a public school system employee is a payroll deduction record and is confidential and exempt from disclosure pursuant to s. 1012.31). However, the personnel file is open at all times to school board members, the superintendent, or the principal, or their respective designees in the exercise of their duties, and to law enforcement personnel in the conduct of a lawful criminal investigation. Section 1012.31(3)(b) and (c), F.S.
No material derogatory to a public school employee shall be open to inspection until 10 days after the employee has been notified as prescribed by statute. Section 1012.31(3)(a)3., F.S. While s. 1012.31(1)(b), F.S., prohibits placing anonymous letters and material in an employee's personnel file, the statute does not prevent a school board from investigating the allegations contained in an anonymous letter nor does it permit the school board to destroy the anonymous material absent compliance with statutory restrictions on destruction of public records. AGO 87-48.
Criminal history record information shared with a public school district pursuant to s. 231.02, F.S., [now s. 1012.32, F.S.] by the Federal Bureau of Investigation retains its character as a federal record to which only limited access is provided by federal law and is not subject to public inspection. AGO 99-01. However, information developed by the school district from further inquiry into references in the federal criminal history record information is a public record which should be included in a school district employee's personnel file. Id.
b. University and community college personnel
Limited-access records maintained by a state university on its employees are confidential and exempt from s. 119.07(1), F.S., and may be released only upon authorization in writing from the employee or upon court order. Without such authorization, access to the records is limited to university personnel as specified in the statute. Section 1012.91, F.S.
Until July 1, 1995, state universities were authorized to prescribe the content and custody of limited-access records maintained on their employees, provided that such records were limited to information reflecting evaluations of employee performance. See Cantanese v. Ceros-Livingston, 599 So. 2d 1021 (Fla. 4th DCA 1992), review denied, 613 So. 2d 2 (Fla. 1992) (copies of minutes and other documentation indicating votes on tenure or promotion applications of university employees are exempt); and Tallahassee Democrat, Inc. v. Florida Board of Regents, 314 So. 2d 164 (Fla. 1st DCA 1975) (investigative report about university athletic staff held confidential).
In 1995, the law was amended to specify that "limited-access records" are limited to: information reflecting academic evaluations of employee performance that are open to inspection only by the employee and university officials responsible for supervision of the employee; records relating to an investigation of employee misconduct which records are confidential until the conclusion of the investigation or the investigation ceases to be active as defined in the law; and records maintained for the purpose of any disciplinary proceeding against the employee or records maintained for any grievance proceeding brought by an employee for enforcement of a collective bargaining agreement or contract until a final decision is made. For sexual harassment investigations, portions of the records that identify or reasonably could lead to the identification of the complainant or a witness also constitute limited-access records. Records which comprise the common core items contained in the State University System Student Assessment of Instruction instrument may not be prescribed as limited-access records. Section 1012.91(4), F.S. These provisions apply to records created after July 1, 1995. Section 1012.91(5), F.S.
Regarding community college personnel, s. 1012.81, F.S., states that rules of the State Board of Education shall prescribe the content and custody of limited-access records maintained by a community college on its employees. Such records "shall be limited to information reflecting evaluations of employee performance and shall be open to inspection only by the employee and by officials of the college who are responsible for supervision of the employee." The limited-access records are confidential and exempt and may be released only as authorized in the statute.
3. Examination materials
Testing materials are generally exempt from the disclosure provisions of s. 119.07(1), F.S. See, e.g., s. 1008.345(7)(h), F.S. (tests and related documents developed to measure and diagnose student achievement of college-level communication and mathematics skills); s. 1012.56(8)(e), F.S. (state-developed educator certification examination, developmental materials and workpapers); s. 1012.56(8)(g), F.S. (examination instruments, including related developmental materials and workpapers, prepared or administered pursuant to s. 1012.56, F.S., relating to educator certification); and s. 1008.23, F.S. (examination and assessment instruments, including developmental materials and workpapers directly related to such instruments, which are prepared or administered pursuant to cited statutes). Cf. Florida Department of Education v. Cooper, 858 So. 2d 394 (Fla. 1st DCA 2003) (Florida Comprehensive Achievement Test [FCAT] test instruments, consisting of the test booklet and questions, as distinguished from the test score, are confidential and do not constitute "student records" which must be provided to student, parent, or guardian upon request). And see AGO 09-35 concluding that student assessment tests developed by teachers to measure student preparedness for college board advanced placement exams are confidential and exempt from the inspection and copying requirements of Ch. 119, F.S. Cf. s. 1008.24(3)(b), F.S. (identity of a school or postsecondary educational institution, personally identifiable information of personnel of a school district or postsecondary educational institution, or allegations of misconduct obtained or reported in connection with an investigation of a testing impropriety conducted by the Department of Education are confidential and exempt from disclosure until the investigation is concluded or becomes inactive).
4. Student records
Access to student records is limited by statute. In 2009, the Legislature revised the state statutes relating to student records to incorporate the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. s. 1232g. "Education records" are defined by FERPA to mean "those records, files, documents, and other materials" (except as otherwise provided in 20 U.S.C. s. 1232g[a][B]), which contain "information directly related to a student" and "are maintained by an educational agency or institution or by a person acting for such agency or institution." (e.s.) 20 U.S.C. s. 1232g(a)(4)(A). And see 34 C.F.R. Part 99 for regulations implementing FERPA.
For education records of students in elementary and secondary schools, section 1002.22(2), F.S., guarantees students and their parents the right to have education records created, maintained or used by public educational institutions and agencies protected in accordance with the FERPA, the implementing regulations issued pursuant to this act, and s. 1002.22, F.S. See s. 1002.22(1), F.S., defining "Agency" and "Institution." Section 1002.22, F.S., also applies to records of any defunct nonpublic educational institution that has deposited its student records with the district school superintendent in the county where the institution was located. Section 1002.22(5), F.S.
Section 1002.221, F.S., provides that education records are confidential and prohibits an agency, as defined in s. 1002.22(1)(a), F.S., or a public school, center, institution, or other entity that is part of Florida's education system under s. 1000.04(1), (3), or (4), from releasing a student's education records (as defined in FERPA and implementing regulations) without the student's or parent's written consent, except as permitted by FERPA, or to the Auditor General or the Office of Program Policy Analysis and Government Accountability, when necessary for such agencies to perform their official duties and responsibilities. But see s. 1002.221(2)(b), F.S., permitting an agency to release student education records without the written consent of the student or parent to parties to an interagency agreement among the Department of Juvenile Justice, the school, law enforcement authorities, and other signatory agencies.
Public postsecondary educational Institutions are required to comply with FERPA with respect to the education records of students. Section 1002.225(2), F.S. Section 1006.52(1), F.S., authorizes a public postsecondary educational institution to prescribe the content and custody of records the institution maintains on its students and applicants for admission. A student's education records and applicant records are confidential and exempt. Id. A public postsecondary educational institution may not release a student's education records without the written consent of the student except as permitted by FERPA or to the Auditor General or the Office of Program Policy Analysis and Government Accountability, which are necessary for such agencies to perform their official duties and responsibilities.
In National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), considered FERPA and 2009 amendments to the Florida Statutes. Recognizing that under FERPA a record "qualifies as an educational record only if it 'directly' relates to a student" and relying on several federal and out-of-state cases, the court agreed with the lower court's conclusion that a transcript of a NCAA hearing and a NCAA committee response pertained to allegations of misconduct by the university athletic department and only tangentially related to students. Recognizing that federal and several out-of-state courts have concluded FERPA does not prohibit the release of records so long as the student identifying information is redacted, the NCAA court also held that the transcript and the response would not be protected since the requested records had been redacted to remove student identifying information and thus did not disclose education records. Cf. Inf. Op. to Stabins, June 12, 1997 (teacher grade books are not student "records" or "reports" for purposes of statutory provision establishing that a student or parent had a right to be shown any "record or report relating to such student"; see now s. 1002.22(2)(a), F.S., stating that students and their parents have the right to inspect and review the student's education records).
Section 119.071(5)(c), F.S., exempts information that would identify or locate a child, or the parent or guardian of a child, participating in a government-sponsored recreation program from s. 119.07, F.S., and Art. I, s. 24(a), Fla. Const.
In AGO 01-64 the Attorney General, in interpreting the former statutes, stated that a felony complaint/arrest affidavit created and maintained by school police officers for a juvenile or adult who is a student in the public schools is a law enforcement record subject to disclosure, provided that exempt information such as active criminal investigative information is deleted prior to release. See now 20 U.S.C. 1232g(a)(4)(B)(ii) excluding "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement" from the definition of "education records."
5. Charter schools
Section 1002.33(16)(b), F.S., provides that charter schools are subject to the Public Records Act and the Sunshine Law. The open government laws apply regardless of whether the charter school operates as a public or private entity. AGO 98-48. The records and meetings of a not-for-profit corporation granted charter school status are subject to the requirements of Ch. 119, F.S., and s. 286.011, F.S., even though the charter school has not yet opened its doors to students. AGO 01-23. And see AGO 2010-14 (records of team created by charter school to review personnel decisions subject to Ch. 119, F.S.).
6. School readiness programs
Early learning coalitions (formerly known as school readiness coalitions) created pursuant to s. 411.01(5), F.S., are subject to the open government laws. AGO 01-86. Individual records of children enrolled in school readiness programs provided under s. 411.01, held by an early learning coalition or the Agency for Workforce Innovation are confidential. Section 411.011, F.S. And see s. 1002.72, F.S. (records of children enrolled in the Voluntary Prekindergarten Education Program).