OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. l4-IB05

August 27, 2014

VIA EMAIL AND REGULAR MAIL
Mr. John Wells
2719 Barnsley Road
Wilmington, Delaware 19808
Jwells8@aol.com

Re: FOIA Complaint Concerning the Delaware Department of Education

Dear Mr. Wells:
I write with our determination with respect to your petition dated June 2, 2014 (the “Petition”). You asked this Office to determine whether the Delaware Department of Education (the “DOE”) violated the “open records” requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001, et seq. (“FOIA”), by failing to provide you with access to certain public records relating to “Verifications Procedures for Special Education Funding Units and Local Assurances”  (the “FOIA Request”). The issue is whether any documents that have not already been produced by the DOE are “public records” that are subject to examination under FOIA. For the reasons discussed below, this Office has determined that the documents withheld by DOE are not subject to disclosure pursuant to FOIA.
I. BACKGROUND
On December 16, 2013, you submitted to the DOE your FOIA Request for documents relating to “Verifications Procedures for Special Education Funding Units and Local Assurances.” The DOE’s initial response was made on January 2, 2014. A supplemental response followed on May 19, 2014 when an updated “Needs Based Funding” document was completed by DOE. You assert that the DOE has not fully complied with your FOIA Request. The DOE asserts it has provided you with all documents you seek, with the exception of certain documents that may not be disclosed pursuant to applicable law.
II. APPLICABLE LAW
The statutes and regulations cited by the DOE in support of its position include the federal Family Educational Rights and Privacy Act (“FERPA”), Delaware law, and Delaware regulations as they apply to special education students. Specifically, the applicable statutes and regulations are FERPA, 20 U.S.C. §1232g, regulations promulgated pursuant to FERPA, 34 CFR Part 99, 14 Del. C. § 4111 (“Disclosure of pupils’ school records”), and 14 Del. Admin Code § 927- 10.0 (“Confidentiality of Personally Identifiable Data, Information and Records”). If the DOE is correct, some documents that would otherwise be responsive to your FOIA Request are not “public records” under 29 Del. C. § 10002(l). More specifically, student records are exempted from the definition of “public records” under 29 Del. C. § 10002(l)(1) if their disclosure “would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.” Student records are also exempted under 29 Del. C. § 10002(l)(6) as “records specifically exempted from public disclosure by statute.”

In response to your FOIA Request, you were provided with the following:

Request A: Copy of the guidelines/regulation used by the DOE to determine if units generated by special education students are used as required by 14 Del. C. § 1703.
Production: The DOE provided you with the “Verification Procedures for Special Education Funding Units and Local Assurances” manuals dated September 2012 and September 2013. These procedures guide the DOE’s administration and verification of the September 30, 2012 and September 30, 2013 unit count for students with disabilities.

Request B: Copies of all documents reviewed and analyzed by DOE to determine if units generated by special education students in the five (5) school districts in New Castle County were used as required by 14 Del. C. § 1703 in the school years 2011-2012, 2012-2013, and 2013-2014.
Production: The documents reviewed and analyzed by the DOE consisted of Individual Educational Plans (“IEPs”) and documents containing other personally identifiable information pertaining to specific students. Given the small number of students whose records would otherwise be responsive to your FOIA Request, it is not permissible to produce these documents even after redacting the names and student number identifiers, inasmuch as the remaining information could still lead to identification of individual students. As the U.S. Department of Education advised the Tennessee Department of Education in a letter dated November 14, 2004,

As a reminder, in reporting information, if cell size or other information would make a student’s identity “easily traceable,” that information would be considered “personally identifiable.” See 34 CFR § 99.3. The educational agency or institution should use generally accepted statistical principles and methods to ensure that the data are reported in a manner that fully prevents the identification of students. If that cannot be done, the data must not be reported.

The DOE has established fifteen (15) as the minimum cell size for producing redacted student records. (See U.S. DOE Office of Planning, Evaluation, and Policy Development, Final Regulations published in Federal. Register on December 9, 2008 (Volume 73, Number 237)) stating that “[t]he releasing party is responsible for conducting its own analysis and identifying the best methods to protect the confidentiality of information from education records it chooses to release. In this instance, the number of Special Education students by grade and designation (“Basic” or “Complex”) in each District is small enough (fifteen or fewer) to run the risk of personal identification of these students.

Request C: Copies of all documents showing the actions taken by DOE as required by reference cited above in 2011-2012, 2012-2013, and 2013-2014.
Production: The DOE reasonably understood this request to refer to the five (5) School Districts in New Castle County as referenced in Request B, for which  there were no responsive documents. The DOE nevertheless produced letters and attachments sent in May 2014 (five months after the Mr. Wells’ request) to Cape Henlopen School District, Colonial School District, Family Foundations Academy, and Moyer Academy.

You also requested copies of all documents the DOE forwarded to the State Auditor of Accounts and other agencies as required by law in 2011-2012, 2012-2013, and 20l3-2014, but no responsive documents exist. The DOE voluntarily produced its 2013 and 2014 NBF Excel sheets by District that detail disallowance(s) of student(s) the DOE identified as reported in a special education unit that did not meet the statutory requirements of that unit based on the district/charter school’s explanation and/or formal audit results, as well as the financial impacts of the disallowance(s).
III.  CONCLUSION
The documents withheld by the DOE are not public records.  Applicable State and federal statutes and regulations prohibit the release of records that could be identified to an individual student. Given the guidance provided by the U.S. Department of Education to the Tennessee Department of Education, the DOE is responsible for conducting its own analysis and identifying the best methods to protect the confidentiality of information from education records it chooses to release.  Applying the standards set by the U.S. Department of Education, the DOE cannot produce the documents identified in Request B of your FOIA Request.
Very truly yours,
/s/ Edward K. Black
Edward K. Black
Deputy Attorney General
Approved:
/s/ Timothy P. Mullaney, Sr.
Timothy P. Mullaney, Sr.
Acting Chief Deputy Attorney General
cc:   Ms. Allison Reardon, State Solicitor
Ms. Ilona Kirshon, Deputy Attorney General

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