“I CAN’T BELIEVE HE JUST SAID THAT!”
BOARD MEMBER CONFIDENTIALITY
Presented by:
Nasha Y. Torrez, Esq.
500 Marquette Ave., N.W.
Suite 1360
Albuquerque, NM 87102
(505) 243-6864
PRESENTATION OVERVIEW

FERPA Legal Overview

Your handout has more info!
IPRA Legal Overview
 How to deal with the Media - Tips
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

Your handout has more info!
Scenarios and Practical Tips
Don’t forget the law.
 Media tips.
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Questions & Answers
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FERPA
Family Education Rights and Privacy Act
WHAT IS THE PURPOSE OF FERPA?
To protect the privacy of student
unauthorized access by third parties.
records
by
preventing
See 34 C.F.R. § 99.1 (2010).
TO WHOM DOES FERPA APPLY?
All schools receiving funds through a program of the U.S. Dept.Ed.
See 34 C.F.R. § 99.1 (2010).
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WHAT IS “PERSONALLY IDENTIFIABLE STUDENT
INFORMATION” CONTAINED IN AN “EDUCATION
RECORD”?

Education Record =



directly related to a student, and
maintained by the District or by a party acting for the District.
 Example: diagnostician working for the District under
contract.
Record consists of information recorded in :





handwriting,
print,
computer media,
video or
audio tape.
See 34 C.F.R. § 99.3 (2010).
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“PERSONALLY IDENTIFIABLE” INFORMATION
student’s name;
 name of the student’s parent or other family
member;
 address of the student or student’s family;
 a personal identifier, such as the student’s social
security number or student number;
 list of personal characteristics that would make
the student’s identity easily traceable; or
 other information that would make the student’s
identity easily traceable.

See 34 C.F.R. § 99.3 (2010).
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WHAT DOES IT MEAN TO “DISCLOSE”
AN EDUCATION RECORD?
Very broad definition.
“Disclosure means to permit access to or the
release, transfer, or other communication of
personally identifiable information contained in
education records to any party, by any means,
including oral, written, or electronic means.”
See 34 C.F.R. § 99.3 (2010).
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DOES CASUAL CONVERSATION COUNT?
Yes.
Oral disclosure of personally identifiable student
information contained in an education record is
governed by FERPA.
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TEACHER’S CLASSROOM REMARKS
VIOLATED FERPA
A frustrated teacher tells a student with disabilities to leave
the class because of his bad behavior.
In front of students, she says, “I hate that kid…I don’t care if
he is disabled…I don’t like him…I don’t care if he has …It’s
his problem and not mine, and I don’t have to deal with it.”
The teacher’s comments violated FERPA because the teacher
improperly revealed the disability of a student to the class.
Letter to Wilhelm, Family Policy Compliance Office 01/28/98.
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WHEN PRIOR CONSENT IS NOT REQUIRED:
DIRECTORY INFORMATION

FERPA Exception to prior written consent: disclosure of
information the school district has designated as directory
information.


District officials may disclose directory information if it has
given public notice to parents and given the parent the
opportunity to opt out.


See 34 C.F.R. § 99.31 (2010).
See 34 C.F.R. § 99.37 (2010).
Directory Information includes:
Student’s name
Address, telephone listing, email address
Photograph
 Date/place of birth
 Dates of attendance
 Participation in officially recognized activities and sports.




See 34 C.F.R. § 99.3 (2010).
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WHEN IS PRIOR CONSENT NOT
REQUIRED?
The FERPA regulations provide several
exceptions to the parental consent requirement:


disclosure to comply with a judicial order or
lawfully issued subpoena;
disclosure in connection with a health or safety
emergency;
See 34 C.F.R. § 99.31 (2010).
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DISCLOSING INFORMATION IN HEALTH
AND SAFETY EMERGENCIES
Before releasing an education record without consent under
this exception, school districts should make sure they can
articulate a reasonable (and believable) explanation as to:
 why the situation qualified as an emergency, and
 why the party to whom the information was
disclosed needed the information to protect the
health and safety of the student or others.
An emergency is usually a sudden or unexpected
happening with pressing necessity or calling for
immediate action without time for full deliberation.
See 34 C.F.R. § 99.36 (2010).
NARROW
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HEALTH AND SAFETY EXAMPLES:
Narrow and about immediacy:
Student running through hall with a gun.
 Student with highly contagious disease at school.

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THERE’S BEEN A CRIME IN OUR TOWN ALLEGEDLY
INVOLVING ONE OF OUR STUDENTS. THE DEPUTY
WANTS TO REVIEW THE STUDENT’S DISCIPLINE
RECORDS. CAN WE LET HIM?
 The deputy can obtain access by: (1) obtain written consent
of the parent or eligible student; or (2) present the district
with a court order or subpoena for the student’s records.
The only other exception which could apply is if immediate
access to the records is necessary due to an emergency
which threatens health or safety. “[t]his exception is
limited to the period of the emergency and generally does
not allow for a blanket release of personally identifiable
information from a student’s education records.” Balancing
Student Privacy and School Safety: A Guide to the Family
Educational Rights and Privacy Act for Elementary and
Secondary Schools (Family Policy Compliance Office,
October 2007):
http://www.ed.gov/policy/gen/guid/fpco/brochures/elsec.
html.
 NOTE: You can not tell the deputy what is in the records.
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INSPECTION OF PUBLIC RECORDS ACT
(“IPRA”)
NMSA 1978 § 14-2-1 (2011)
NM Attorney General Guide on IPRA
http://www.nmag.gov/
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IPRA LEGAL OVERVIEW
PUBLIC RECORD:
“any document, tape, or other material, regardless of
form, that is used, created, received, maintained or held
by or on behalf of a public body, and is related to public
business.”
Pretty Broad!
NMSA 1978 § 14-2-6(E) (2011).
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IPRA
EXCEPTIONS
“Every person has a right to inspect public
records of this state except:
(3.) letters or memorandum that are matters of
opinion in personnel files or students’
cumulative files;
(12.) as otherwise provided by law.”
FERPA
NMSA 1978 § § 14-2-1(A)(3) and (12) (2011).
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IPRA: FERPA EXCEPTION
“AS OTHERWISE PROVIDED BY LAW”
NM Attorney General Guide on IPRA, page 21
Specifically outlines FERPA as an example of a
federal law that makes records exempt from IPRA
disclosure.
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IPRA EXCEPTION: PERSONNEL


Protect information that is subjective rather than
factual.
“Information that might have no foundation in fact,
but if released for public view, could be seriously
damaging to an employee”
Letters of reference
 Documents concerning disciplinary action and promotions
 Documents concerning infractions and disciplinary action
 Personnel evaluations.

State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (S. Ct. 1977).
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MEDIA INTERVIEW TIPS

Establish a Response Team with a main point of
contact:

Always the same person –
helps control the message
 Helps give the press a clear idea of who they should talk to
& how to get the info they need.


Main point person DUTIES:
Field all media questions
 Return media calls
 Spokesperson in all interviews
 Move info up the chain of command
 Establish a reputation of accessibility to reports.
 Helps with inputting your perspective in the story.
 Helps with access to a follow up story.

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INTERVIEW PREPARATION TIPS

Ask for topics & interview questions in
ADVANCE of the interview.

Allows you to prepare your answers & do your
homework.
Map your response – develop a plan with your
Response Team.
 Accept that you can’t anticipate every question


You can get back to the reporter later.
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INTERVIEW CONDUCT DO’S
Record all interviews, if possible.
 Assume you are always being recorded.
 Be polite. Even when it hurts.
 Remember the reporter asks questions because it
is part of his job.



Be honest.


Usually tasked with getting a particular story.
Don’t try to conceal negative information, rather let
the interviewer know what you are doing to solve the
problem.
Set the record straight.

Correct any and all inaccuracies.
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INTERVIEW CONDUCT DO’S
State the most important thing 1st, then provide
background.
 Keep your answers short. Speak in headlines.
 Remain confident.
 Avoid acronyms.
 “I don’t know” is OK.
 Your final statement is your most important.



If you feel your message was not clear – make it clear
now.
Offer to provide the reporter with a written
summary of info, main points, & statistics if
possible.
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INTERVIEW CONDUCT DON’TS
Never argue with a reporter. Ever.
 Don’t talk down to a reporter, but don’t assume
they have done research before talking to you.
 Don’t overestimate a reporter’s knowledge of the
topic.



Chances are he got the story in 40 seconds of an
editorial meeting.
Avoid using “no comment” in place of “The
District is aware of the issue and is gathering all
of the facts so we can make an assessment and
take whatever action might be necessary.” OR “I
can’t speak to that because I have not seen the
information you are referring to.”
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INTERVIEW CONDUCT DON’TS
Avoid talking around a question, if you don’t
understand – ask for clarification.
 Avoid communicating anything, “off the record.”
 Don’t overreact, or get angry.
 Never drop your guard until the interview is
over. Really over.

Phone hung up.
 Reporter left the premises.

Don’t elaborate any more than asked or than you
deem necessary.
 Don’t say something in an email that you don’t
want to read in the paper.

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SCENARIO 1: THE “BAD” COACH
Your basketball team has had a terrible season and
the community wants to talk about the problems
with the coach’s “style.”
During public comment at your Board meeting.
 At the grocery store: “So are you going to fire that
coach?”
 The press calls you for a comment.

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REMEMBER: RULES ON PUBLIC COMMENT
Know your:
 Policies,
 Procedures,
 Public Comment Notices
Control the meeting.
Stick to your rules.
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OMA EXCEPTION: LIMITED PERSONNEL
Closed session allowed for the “discussion of:






hiring,
promotion,
demotion,
dismissal,
assignment or resignation of
or the investigation or consideration of complaints or
changes against any individual public employee.”
NMSA 1978, §10-15-1(H)(2) (1999).
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REMEMBER: BOARD’S ROLE V.
SUPERINTENDENT IN PERSONNEL MATTERS
The Board can:
 employ and evaluate a Superintendent for the
district and fix his/her salary 6.29.1.9(A)(2)
NMAC (2011) and NMSA 1978, § 22-5-2(B)
(2005).


Not coaches and teachers.
delegate administrative and supervisory
functions to the Superintendent and refrain from
involvement in administrative functions.
6.29.1.9(A)(4)–(5) NMAC (2011).

Not conduct investigations.
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IPRA REMINDER: PERSONNEL


Protect information that is subjective rather than
factual.
“Information that might have no foundation in fact,
but if released for public view, could be seriously
damaging to an employee”
Letters of reference
 Documents concerning disciplinary action and promotions
 Documents concerning infractions and disciplinary action
 Personnel evaluations.

State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (S. Ct. 1977).
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SCENARIO: “MY KID DID WHAT?”
A student is disciplined for violating the code of
conduct for bullying.
 The perpetrator’s parents deny that their child
could do something so bad.
 The victim’s parents what to know every detail of
what happened and what the District plans on
doing about it.
 The community at a Board meeting wants to
know what are you going to do about bullying in
the schools?
 The media wants to run a story all about it.
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WARNING: FERPA
Applies to:
 Board meetings.
 Conversations in the grocery store.
 Calls from the parents.
 The press asking for information and comments.
 District staff that do not have a legitimate
educational need to know the personally
identifiable information from education records.
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WHAT YOU CAN SAY IN AN OPEN SESSION?

Policy:
What you have, and where the public can find it.
 What you may consider expanding in response to the
situation.


Protocol:

Can tell what you do and how you handle such things
in the District. Just not this specific case.
Programs designed to prevent and stop this type
of problem.
 Programs in response to the situation.
 The District is taking it seriously.
 The District is conducting an investigation.

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WHAT CAN’T YOU SAY IN AN OPEN
SESSION?

Personally identifiable student information:


Includes parents, family, student names.
Press and Media Tips:
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OMA EXCEPTION: STUDENT INFORMATION
Closed Session allowed for:
“the discussion of personally identifiable
information about any individual student, unless
the student his parent or guardian requests
otherwise.”
NMSA 1978, §10-15-1(H)(4) (1999)
.
Example: Student discipline hearing.
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It is not a violation of FERPA if a school
official reports illegal student conduct that
he/she observed take place on school grounds
to law enforcement.
According to the U.S. Department of Education Family Policy
Compliance Office, “FERPA does not prohibit a school official
from disclosing information about a student if the information
is obtained through the school official’s personal knowledge or
observation, and not from the student’s education records.
Example: A teacher overhears a student making threatening
remarks to other students, FERPA does not protect that
information and the teacher may disclose what she overheard
to appropriate authorities.”
Balancing Student Privacy and School Safety: A Guide to the
Family and Educational Rights and Privacy Act for
Elementary and Secondary Schools (Family Policy
Compliance Office, October 2007):
http://www.ed.gov/policy/gen/guid/fpco/brochures/elsec.html
35
IPRA REMINDER FOR THE MEDIA
“Every person has a right to inspect public records of this state
except:
(3.) letters or memorandum that are matters of opinion in
personnel files or students’ cumulative files;
(12.) as otherwise provided by law.”
FERPA
36
NMSA 1978 § § 14-2-1(A)(3) and (12) (2011).
SCENARIO: DON’T STAND SO CLOSE TO
ME.
A student accuses a teacher of behaving in a
sexually inappropriate way towards her. The
student’s mother takes her concerns to the media.
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MANDATORY REPORTING OF SUSPECTED
CHILD ABUSE

Reporting to law enforcement or CYFD.
Any school official (includes Board members).
 Reasonable suspicion is all that is needed.
 NMSA 1978, §§ 32A-4-3 (2005), 32A-1-4(F) (2009) and
6.29.1.9(C)(3) NMAC (2011).


Reporting to the Ethics Bureau of the NMPED.
Done by District Administration post investigation.
 6.68.3.8(C) NMAC (2005).

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An investigator with CYFD has requested student
records for the purpose of conducting an
investigation of alleged child abuse.
DO WE PROVIDE THE RECORDS TO THE
INVESTIGATOR?

Even without parental permission or an
emergency or court order as provided for by
FERPA, a school district is required to provide
student records if CYFD requests them in
connection with an investigation of child abuse or
neglect.
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CAN A SCHOOL DISTRICT SHARE
EDUCATION RECORDS WITH ITS
ATTORNEY?
 Yes. The parent of a student with a
disability filed a complaint that the school district
improperly disclosed information from his son’s
education records to the school district’s attorney.
The Family Policy Compliance Office found no
violation of FERPA. FERPA’s privacy protections
are extended explicitly to records and materials
maintained by persons “acting for” an educational
agency or institution. South Glenn Falls (NY)
Central School District, 32 IDELR 100 (Family
Policy Compliance Office July 21, 1999).
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GENERAL LEGAL TIPS:

FERPA applies

Maybe Health and Safety Emergency, BUT narrow.
IPRA applies
 OMA applies

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PRESS AND MEDIA TIPS:
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QUESTIONS?
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THANK YOU!
Nasha Y. Torrez, Esq.
500 Marquette Ave., N.W.
Suite 1360
Albuquerque, NM 87102
(505) 243-6864
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The information in this handout was created by Walsh,
Anderson, Gallegos, Green & Treviño, P.C. It is
intended to be used for general information only and
is not to be considered specific legal advice. If specific
legal advice is sought, consult an attorney.
Copyright 2012: Walsh, Anderson, Gallegos, Green & Treviño, P.C.
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