Open Records, Open Meetings and Protecting Student’s Privacy Determining What to Keep Confidential & What to Disclose

Presumption of Openness in Government As public schools, charter schools are subject to: Open and Public Meetings Act (O.C.G.A. §§ through ); Open Records Act (O.C.G.A. §§ through ) When a quorum of the agency’s members (broadly defined) meets to discuss official business, policy or takes official action, the meeting must be open to the public; Applies to governing boards as well as parent council meetings if the parent council is a committee of the board or represents a quorum of the board. 2 The contents of this presentation are for informative purposes only and should in no way be construed as legal advice. Attendees are advised to consult an attorney regarding these matters.

Notice of Meetings Meetings must be accessible to public (even when conducted via conference call or other electronic means); Adopt a set schedule of meetings in bylaws; Must notify public of dates, time and location of its regular meetings and post the notice in a conspicuous place at its regular meeting place; Must be sufficient to reasonably apprise a concerned party of an upcoming meeting; Must create an agenda and post the agenda at the meeting site within two weeks prior to meeting; 3

Notice to Public If not a regular meeting, must post written notice for at least 24 hours at the meeting location and provide the notice to the newspaper which serves as the county’s legal organ; If the legal organ is published less than four times a week, must notify any local media outlets that request to be notified at least 24 hours in advance of the meeting. 4

Exceptions-When Can a Meeting be Closed? Employment matters; Discussions of future acquisition of real estate; Discussions of records exempt from Open Records Act; Attorney/client privileged discussions of actual or potential lawsuits or claims; 5

Closed Meeting Process Must vote prior to closing the session; Can close meeting for discussion and deliberation period only; Any votes taken in a closed session have no validity; Record reasons for closing meeting in minutes; Meeting chair must execute a notarized affidavit to be included in minutes stating the reason for the closed meeting and the discussion during the closed portion was limited to those matters exempted by law. 6

Maintaining Records of Meetings Minutes of all meetings must be kept in writing and made available to the public no later than at the next public meeting; Minutes must contain, at a minimum, the following: Names of all members present; Description of each motion made; Record of all votes If a portion or all of the meeting was closed, include board chair’s notarized affidavit with the minutes 7

Maintaining Records of Meetings If a portion of meeting was closed, record the vote to close the meeting, the reason for closing the meeting and record votes reflecting action taken during the closed portion of the meeting; If the entire meeting was closed, minutes must be kept but the only portion of the minutes open to the public is the reason for closing the meeting and the votes taken during the meeting 8

Open Meetings Act: Summary When a quorum of the governing body is present, considered an official meeting which must be open to the public; Must provide public access, even when meeting is conducted via conference call or other electronic means; Notice of meeting and agenda to public; Exceptions are very narrow and limited to discussion only, not voting 9

Open Records Act Public has a right to see, inspect and copy public records: Documents (including those maintained by a private person or firm doing work on behalf of the government entity); Books; Tapes; Photographs; Computer records; Similar material prepared and maintained or received in the course of the operation of a public agency. Only applies to existing records 10

Exceptions Include the Following: Records that are specifically required by federal statute or regulation to be kept confidential; Records related to an investigation or prosecution of criminal activity; Confidential employee records (includes annual teacher and superintendent evaluations); Attorney/Client Privileged information; Personally Identifiable information in educational records (aggregate data okay under FERPA as long as the student’s identity is not “easily traceable”); Test questions, scoring keys and other materials when disclosing such documents would compromise the validity of the test. 11

School Records that are NOT Exempt from Disclosure 12 Directory information Defined in FERPA; BUT if parent opted out of disclosure, cannot be disclosed; Records created after a student leaves the educational institution; Test scores in statistical format; Law enforcement records created by a law enforcement unit of the education agency;

School Records that are NOT Exempt 13 In general, school personnel records of teachers and employees must be produced (including salary information), but certain information may be redacted from a record (social security number, date of birth, insurance or medical information, home address and telephone number, personal financial information); Employment Applications (may redact above information); Background Investigations (except for confidential evaluations); Certificates of training (may redact above information); Reprimands/Adverse Personnel Actions (after redaction of above)

Open Records Request Requests should be in writing; Must respond to requests within three business days of receipt; Response should include estimate of costs; a timetable of when records will be available if not available immediately; or reasons why documents are exempt from disclosure 14

Administrative Costs Administrative costs can be charged to requesting party, but must be reasonable; Up to.25 per page for copying; Search, retrieval and other administrative costs may be charged, but hourly charges may not exceed the salary of the lowest paid, full-time employee who has the necessary skill and training to perform the request; No charge for the first quarter hour of administrative time; Cannot charge for attorney’s time determining whether or not records should be disclosed; 15

Penalties for Violations of Open Meetings & Open Records Acts Any person knowingly or willingly conducting or participating in a meeting in violation of the Open Meetings Act can be found guilty of a misdemeanor and fine not to exceed $500; Risk that the action taken during the meeting will be invalidated If found to have willingly and knowingly violated the Open Records Act, can be found guilty of a misdemeanor and fine. 16

Family Educational Rights and Privacy (FERPA) Purpose: Ensure that parents and students have meaningful access to their own education records while limiting access and release of such records to others. Protects confidentiality of “personally identifiable information” Name, address, personal identifier number (social security number or student number) or a list of personal characteristics or other information that would make it possible to identify the student with reasonable certainty. 17

What is Required Under FERPA? Must gain prior written consent of parents before releasing education records or personally identifiable information, except in certain circumstances (to state and local education authorities, in response to a subpoena or court order, school officials deemed to have legitimate educational interests); Allow parents to inspect, review and obtain copies of their children’s education records; Allow parents the opportunity to correct any records found to be inaccurate or misleading; Allow parents to opt out of disclosure of directory information 18

What is Required Under FERPA? When a parent requests a record, school must produce the record for the parent’s inspection and review within 45 days of the request; Give parents the opportunity to opt out of disclosure of directory information (name, age, address); Annual notification of parent rights; Maintain record of access; Process for requests to amend records and administrative hearing procedure when requested 19

Annual Notification of Rights Right to inspect and review and all information related to the process; Notice that the parent has the right to request an amendment of a misleading or incorrect record and the procedure for doing so; Notice that the parent must consent to disclosures of personally identifiable information (except in the cases where prior permission not required); If information is disclosed to a school official, the criteria for determining who is a school official and what constitutes a legitimate educational interest; Right to file a complaint for failing to comply 20

Record of Access Must maintain record of individuals who have requested and/or obtained access to a students education records and what the legitimate educational interest was; Exceptions for parent, grand jury subpoena; and school officials having legitimate educational interest Record of access is confidential and is only available to parents and school officials 21

Process for Amendment of Records Request for Amendment of Records Upon parent request, must make the determination (within a reasonable time) as to whether or not certain information is inaccurate, misleading or in violation of the child’s privacy rights; If the decision is to not amend, must inform parent of their right to an administrative hearing 22

Other Record Keeping Requirements Must provide parents upon request a list of types and locations of education records collected, maintained or used by the school; Must maintain a list containing the names and positions of those employees within the school who may have access to personally identifiable information; List is available for public inspection 23

Protection of Pupil Rights Amendment Regulates student surveys or evaluations related to the following areas: Political affiliations or beliefs of student or parent; Mental or psychological problems of student or family members; Sex behavior or attitudes; Illegal, anti-social, self-incriminating or demeaning behavior; Criticism of other individuals that the students have close family relationships with; Privileged relationships (lawyer, physician, church official); Religious practices or beliefs; Income (other than that required by law to determine eligibility for financial aid); 24

Protection of Pupil Rights Amendment Requires notice and the prior written consent of parents prior to participating in survey; Annual notice at the beginning of the school year of the date or approximate date of the survey and an opportunity to opt out of student participation in survey; Right to review any instructional material used in connection with a survey 25