David Blount, Editor

Privacy: The Individual, The Institution and
The Public's Right to Know

In recent years, the General Assembly has dealt with and approved bills related to various privacy/public right to know issues. These include freedom of information, employee fingerprinting requirements, drug testing and student searches, and in some cases, legislative change has taken several years to be realized. In many cases, the public's right to know has been given great weight, particularly with an overhaul of the Freedom of Information Act. A focus on keeping schools safe and ever-changing technological advances will continue to challenge lawmakers to strike the proper balance between privacy and the public's right to know.

The legislature shed more light on school division expenditures in 1994, as it approved HB 744 requiring school superintendents to annually notify parents of estimated per pupil education costs for the coming year and the actual costs for the previous year.

The next several years brought more intense scrutiny on information flow between schools and law enforcement agencies. In 1995, HB 2215 required school principals to inform law enforcement of incidents at school involving weapons, drugs or assaults. A year later, HB 276 and HB 290 expanded requirements for law enforcement to notify schools of arrests of any employee (to include full-time, part-time and temporary) and of arrests for crimes of moral turpitude. HB 290 also required school applicants to certify that they have not been convicted of a felony or a crime of moral turpitude, in addition to the specified offenses against children.

In 1997, the legislature approved HB 1802, which allowed school superintendents to suspend or expel any student convicted of a drug offense. This provision was enacted in lieu of the latest in a line of unsuccessful attempts to allow voluntary, random drug testing of students. HB 2167 further expanded the list of offenses for which law enforcement is required to notify schools of arrests of employees. SB 725 required school boards to search the state child abuse and neglect registry for information on applicants who would have direct contact with students, and required such applicants to certify that they had not been the subject of a founded case of child abuse and neglect.

Several new requirements were instituted in 1998 geared toward making more information public. HB 184 required school superintendents to annually report to the school board the divisionwide ratio of students to teachers in each grade, both including and excluding resource teachers. HB 211 required annual reporting to the public of those ratios. HJR 187 established a study committee to conduct a comprehensive examination of the Freedom of Information Act (FOIA).

Also in 1998, HB 1104 allowed a principal to disseminate information concerning student conviction of certain serious crimes to school personnel providing direct educational and support services to the student. HB 1343 directed the Board of Education to develop guidelines for conducting student searches. And an unsuccessful attempt was made through SB 511 to require criminal history background checks for school volunteers.

With an eye toward the prevalence of technology in schools, the General Assembly, in 1999, enacted HB 1043, which required school divisions to develop acceptable internet use policies and prescribed minimum components of such policies. HB 1985 and SB 1023 were bills recommended by the FOIA study committee. Designed to bring government workings more into public view, the bills made numerous changes and clarifications regarding public records, student records, open meetings, consultation with legal counsel and FOIA enforcement. Finally, HJR 740 requested the Department of Education to study whether to make report of school violence available to parents.

Internet provisions were extended in 2000, through HB 513, which required public bodies with Internet websites to develop a privacy policy, addressing at a minimum, what information, including personally identifiable information, might be collected, and whether information will be automatically collected simply by accessing the site. Employers were afforded some protections with HB 1126 which stipulated that employers who provide information about a person's professional conduct or job performance to a prospective or current employer shall be immune from civil liability. This concept was approved after having been defeated for several years. On the student and teacher front, HB 588 allowed school boards to require any student who possesses or is under the influence of drugs or alcohol on school property to undergo evaluation for drug or alcohol abuse and to participate in a treatment program. HB 1445 required school boards to have regulations governing student searches that are consistent with Board of Education guidelines. HB 1238 required all school boards to conduct criminal background checks of personnel as a condition of employment. Via letter from the House Rules Committee, the Crime Commission was requested to study the use of electronic surveillance equipment by school divisions.

In 2001, the General Assembly directed the Board of Education, through HB 1226 to publicize and disseminate to parents of special education students, information regarding current federal laws addressing procedures and rights related to the placement and withdrawal of children in special education. HB 1691 directed school divisions, in compliance with the federal Children's Internet Protection Act (CIPA), to select a software technology to filter or block Internet access to child pornography and obscenity through the division's computers. HB 2841 allowed certain law enforcement officers to disclose to a school principal that a juvenile is a suspect in or has been charged in connection with certain crimes.

In 2002, the legislature approved HB 127 which allowed a parent to obtain results of a minor's nondiagnostic drug test when the minor is not receiving substance abuse care, treatment or rehabilitation. HB 397 directed school boards to develop policies prohibiting school-sponsored surveys or questionnaires without written, parental consent for the student's participation, when participation may result in sale of personnel information.

Finally, while the events of September 11, 2001 spurred numerous proposed bills in the 2002 session, two are of particular note: HB 668, which provided civil immunity to employees for truthful reporting of a co-workers threatening conduct; and HB 700 and SB 134s, which exempt certain records (including tactical plans, security/emergency procedures, and engineering and architectural drawings) from required disclosure under FOIA.

Judging from the General Assembly's past dealings with privacy and public right-to-know issues, legislative activity in these areas is likely to continue. While no specific study is envisioned, it is worthy to note that the Freedom of Information Act Advisory Council has been made a permanent legislative agency, thus ensuring continued close examination of open records and meetings and their related issues.

Alabama has expanded its requirements for criminal history checks of school personnel, to include any new or existing employee who has unsupervised access to students to undergo both state and national background checks. State background checks already were being conducted on newly hired, certified staff and on applicants for certification. Mississippi also now requires employee criminal background checks prior to hiring.

New legislation in New Jersey allows school districts to administer certain surveys to students only after receiving written informed parental consent. Consent is required if the information revealed relates to such things as political affiliations, mental or psychological problems, sexual behavior and attitudes and income. In West Virginia, no school shall display any student's social security number to identify students for posting or public listing of grades, on class rosters or other lists provided to teachers, on student identification cards, or in student directories or similar listings. South Dakota requires school districts to provide the Board of Regents' office a mailing list of students in grades 7-12 by November 1 each year. The list will be used to provide information to students and parents about post-high school and career planning; parents can choose to not have such information about their child released. Finally, many states have been very active in recent years to pass laws relating to notification of arrests.

The newly revised Elementary and Secondary Education Act (ESEA), which was signed into law by President Bush in February 2002, requires school districts to formulate policies for notifying parents, and and for protecting families' privacy, when students are asked to take part in surveys that contain questions about their sexual activities, their political beliefs and religious practices, and a variety of other sensitive topics.

Legislation pending in Congress (H.R. 1854) known as the Parental Freedom of Information Act, would require educational agencies or institutions, as a condition of receiving certain federal funds, to neither deny nor prevent parents from reviewing and inspecting instructional materials, and to obtain parental consent before seeking specified types of information from minors and before performing certain non-emergency examination or treatment of minors. This bill has been referred to a subcommittee of the House Committee on Education and the Workforce.

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