Board of Trustees, Cut Bank Pub. Sch. v. Cut Bank Pioneer Press, No. 06-0074 (Mont. May 8, 2007)
The Montana Supreme Court has ruled that a newspaper was entitled to a redacted copy of a school board’s records regarding disciplinary action taken against students. The litigation originated in the decision by the Cut Bank School Board to hold a disciplinary hearing in closed session for two students over their part in shooting other students on school property with a BB gun. Both students or their representatives declined to waive their right to privacy. The board reconvened in open session to approve its action in the closed hearing but declined to reveal the discipline meted out and merely referred to the students by assigned numbers. When the local newspaper was rebuffed in its attempts to obtain information on the action, it sued, seeking redacted copies of the disciplinary records. The state district court, relying primarily on the federal Family Educational Rights and Privacy Act (FERPA), denied the records request, concluding that, “‘FERPA does apply to the records of the disciplinary proceeding, and preempts any Montana constitutional or statutory law with respect to the disclosure of such records or results ....’”
On appeal, the supreme court held that FERPA does not prohibit public disclosure of redacted records regarding disciplinary actions where the records contain no personally identifiable information. Other jurisdictions have held that disciplinary records do not constitute “education records” under FERPA, the court noted, and have ruled “that once a record is redacted, it no longer contains ‘information relating directly to a student’ and is therefore not an educational record under FERPA.” The court also rejected the school board’s argument that disclosure would violate the students’ and parents’ privacy rights under the state constitution. Because the school board is a public body within the meaning of the state constitution, the requested records were public documents, and the privacy argument was subject to a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and (2) whether society is willing to recognize that expectation as reasonable. The court held that “any subjective expectation of privacy here, given Pioneer’s limited request, would not be considered reasonable by society and is outweighed by the merits of public disclosure.” The court refused to consider the fact that Pioneer’s editor already had learned the identity of students through the “small town rumor mill.” As for the second prong, the court concluded the request was not clearly outweighed by privacy interests.
Board of Trustees, Cut Bank Pub. Sch. v. Cut Bank Pioneer Press, No. 06-0074 (Mont. May 8, 2007)
[Full opinion]
[Editor’s Note: A more detailed summary of the decision is posted below.]
[NSBA detailed summary]