Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
As a high school administrator, I have to do those bullying investigations from time to time. As required by the law, I recently informed a rather over-involved parent that I had started investigating a complaint that her child had been bullied. OMG. Apparently the parent was not aware of the fact that the student herself filed the complaint, and she went off the deep end. Within ten minutes, she was at my school with tears in her eyes asking to take her daughter home to keep her safe. Using all my charm and most of my patience, I talked her down. I showed her the complaint that the daughter had filed, and I assured her that I would take all necessary steps to complete my bullying investigation and keep her daughter safe in between. Somewhat mollified, the mom finally left my office, pausing, however, to warn me that she would be carefully monitoring my every move.
After a comprehensive investigation, I did in fact verify the bullying complaint. The perpetrator had gotten carried away on WhatsApp, making mean-spirited statements about the female student over a few weeks. When I confronted him, the perpetrator went hands-up and indeed showed true remorse. Nonetheless, I suspended him for three days and set up a safety plan that required that he not interact with the victim anymore. I met with the mother and explained all this. She was grateful for my efforts, and I thought that I was done. Two days later, however, I was surprised to receive a certified letter in which the mother demands a copy of (1) “the full bullying report, including all personal notes” and (2) “all records setting forth the discipline imposed on the perpetrator of bullying my daughter.” Her request sounds so official. Do I have to send her the information she is requesting?
Dotting my I’s
I am glad that you checked. First, you are not permitted to send the mother records describing any discipline imposed on the perpetrator. As you well know, that information is personally-identifiable student information protected by FERPA. Absent a subpoena or some other exception to the general rule requiring confidentiality, you may not share that information.
The status of the report is somewhat more complicated. The report will perforce include information about both students. Accordingly, you may consider the report to be FERPA-protected information that you will not disclose. As to notification at the completion of a bullying investigation, the bullying statute simply requires that you “notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed not later than forty-eight hours after the completion of the investigation described in subdivision (4) of this subsection.” As you will note, there is no requirement that you share the report itself, and the report will include FERPA-protected information as to each student that should not be shared with the parent of the other.
Finally, I note that the parent asks that you provide your “personal notes.” They may well be exempt from disclosure as FERPA-protected information just as is your final report. But you may be happy to note that more generally personal notes are exempt from disclosure under the FOIA as “preliminary drafts or notes.” The courts have ruled that public officials should be able to taking personal working notes without worrying that they will later be subject to public scrutiny under the FOIA.
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