*1 BOARD OF TRUSTEES, SCHOOLS, CUT BANK PUBLIC Respondent, Petitioner v.
CUT PRESS, BANK PIONEER
Respondent Appellant. CUT PIONEER PRESS, BANK Appellant,
Petitioner OF TRUSTEES, BOARD CUT BANK PUBLIC SCHOOLS,
Respondent Respondent. No. DA 06-0074.
Submitted on Briefs October
2006.
8,May
Decided
For Debra Association, Helena. School Boards Wilson, Jr., James P.
For Amici Curiae: David K. W. P.L.L.P., Reynolds, Sherwood, Helena. Reynolds, Motl & Opinion JUSTICE RICE delivered the the Court. (Pioneer) from the Appellant appeals Cut Bank Pioneer Press Court, denying its County,
order of the Ninth Judicial District Glacier regarding imposition for disclosure of records student request discipline. brought “right this action under the know” gain Constitution to provision Article Montana reflecting disciplinary regard access to documents actions taken with High gun certain Cut Bank involved in a BB School students incident. We reverse. following appeal: We consider issues on (1) standing pursue appeal? Does Pioneer have (2) Did the District Court err when it denied Pioneer’s
obtain records: Act, Family Rights Privacy a. Does the Educational (FERPA) 1232g, U.S.C. the release of redacted records?
b. require Does the Montana Constitution disclosure of the redacted records?
BACKGROUND *3 September Trustees, On the Board of Cut Bank Public ¶5 (Board), properly meeting Schools held a noticed to determine whether disciplined two students of the Cut Bank Public should Schools be for part in shooting plastic their other students BBs on with school and, so, property, imposed. if what should Members of discipline be the public, Pioneer, including representative meeting. attended thе determination, The Board an chairperson the made initial 2-3-203(3), (2005), to the pursuant MCA that demands individual § and privacy public exceeded the merits of disclosure ordered meeting public. point during the Board closed to the At the some closed meeting, the representatives students or their were asked to waive their to and so. In privacy meeting, each declined to do the closed the Board met with the students and heard from several involved permitted meeting. character whо attend witnesses were the While session, in the closed the Board what action disciplinary determined Board, and A open to take then reconvened in session. member upon present, proceed advice of counsel who moved the was Board determined session, in the specifying closed without what action respect students, apparently be taken the but referenced would with by assigned the students involved an student number. The motion was approved. The issues previous рractice regarding discipline Board’s student by the meted out publicly
was reveal anonymous only. referencing by each student an number Leanne Kavanagh Pioneer, asked the Board (Kavanagh), the editor they previous practice their and was why members had deviated from attorney disciplinary that them that told the Board’s advised due to The action taken was concerns. that know Kavanagh Board informed if she wanted to the outcome session, to ask the who parents the closed she would have students’ informed by and one of the Kavanagh were attendance. did this was parents that the Board had told the reveal what parents disciplinary imposed. actions were (Johnson), Kavanagh then emailed Johnson Wade Schools, and
Superintendent requested ofthe Cut Bank documentation relating against to the actions taken the students disciplinary Kavanagh request did not students’ names and involved. assigned by asked that the students identified numbers specifically be provide Kavanagh names be did not with redacted. Johnson information, instead, filed petition the Board requested the court asking inspection the District Court for an in camera for disclosed. disciplinary to determine whether records should be by in the Court to obtain the filing petition Pioneer followed District action “discipline reflecting order” or document taken other Court order the petition requested Board. Pioneer’s District custody, in its Board to make all documents related caught shooting discipline given the students BBs evidentiary At information redacted. personally identifiable only the hearing, to seek Pioneer amended anonymous identification number action taken and students involved. and conducted petitions consolidated the two District Court Kavanagh Michael on October evidentiary hearing
an hearing. Board, testified at Koepke, chairperson of both entirely on decision almost The District Court based its Rights Privacy Act of 20 U.S.C. Family federal Educational (FERPA), applied to the results of 1232g which *4 prohibited and the Board conducted the Board proceedings committed, students, any and “the of the violations disclosing names their of the students and any imposed” the consent actions without of the “analysis that an The District Court concluded parents.
233 II, II, 9 Article 10 Montana interaction Article § § necessary” Constitution this situation is not because “FERPA does apply proceeding, to the records of the preempts ... any statutory Montana constitutional or to the respect law disclosure of such records or ....”The further held that results court no II, 9, relief is to Pioneer under Article available Section ofthe Montana Constitution, 2-6-102, appeals. or under MCA. Pioneer
STANDARD OF REVIEW law, This Court district conclusions of including reviews court’s law, they issues of constitutional to determine whether are correct. Bryan District, 264, 16, 312 257, 16, 60 381, 2002 MT Mont. P.3d ¶ ¶ 16. ¶
DISCUSSION 1. standing pursue Does Pioneer have to appeal? this matter, preliminary As a the Board asserts that Pioneer lacks standing bring 9, a petition under Article Section ofthe Montana pursue Constitution an appeal before this Court. The Board allege contends that Pioneer failed to how it has been personally injured, immediate or threatened with injury, by alleged responds constitutional violation. Pioneer personal asserted a interest alleged resulting in the records at issue and an injury from the records, denial of those and thus standing pursue appeal. has this general prohibiting rule for on appеal new issues does not apply jurisdictional Bryan, Thus, issues such standing. 19. ¶ issue standing properly before Court. “Standing question is a threshold jurisdictional ‘especially1 a statutory
cases ‘where or constitutional violation claimed have ” 31, Dist., 7, occurred Darby ....’ Fleenor v. School 2006 MT 331 ¶ 124, 7, 128 suit, Mont. P.3d standing bring 7. To establish ¶ ¶ complaining party past, must allege present, or injury Fleenor, Further, property right. threatened to a or civil ¶ alleged injury distinguishable injury must be from the generally, injury complaining but need not be exclusive tо the 20). Fleenor, party. (citing Bryan, 9 A “such plaintiff ¶ must have controversy personal stake the outcome of the as to assure that presentation Bryan, concrete sharpens adverseness which issues.” (quoting County, District No. 55 Mont. v. Musselshell (1990). allege fail P.2d Persons who injury, interest of all personal beyond common interest *5 234 (citation omitted). Fleenor, standing. and lack taxpayers, ¶
citizens II, 9, grants Montana Constitution at Article public’s right know: Right deprived shall of the person
Section 9. to know. No be оf all to examine documents or to observe deliberation right subdivisions, agencies government of and its bodies or state of individual except cases which demand merits of public exceeds the disclosure. government public access to
Corresponding protect statutes MCA, documents, 2-6-102(1), provides, “[e]very including which copy public writings a a right inspect citizen has take rights granted by right provision to know extend this state....” The Gazette, County Billings well. to media entities as Yellowstone (citation 17, 135, MT 143 P.3d 333 Mont. ¶ ¶ ¶ omitted). Fleenor, alleging filed that her to know plaintiff In suit notify of the
had been violated when the school district failed her a leading hiring decisions and related school board votes Fleenor’s superintendent. school The district court dismissed standing and, on Court affirmed. complaint appeal, for lack of this “broadly that be Although noting Montana’s Constitution determined construed,” Fleenor, “[e]ven a broad liberally we ¶ from 8 and 9 does not excuse Fleenor reading of Article Sectiоns standing requirements reflected in our meeting the well established allege present a or jurisprudence” plaintiff past, must —that distinguishable an that is from injury, allege injury threatened Fleenor, 9. that Fleenor injury general public. We concluded allegation injury no standing lacked because she “insists fact, allege makes none. In she does not even necessary, [and] she injured injure or threatened to faulty the District’s notice somehow Fleenor, her.” documents, and was Here, specific requеst made a for Pioneer Pioneer, hearing, through those At the
denied access to documents. sought and the reason the information it Kavanaugh, testified about the request: for it that
Q. judge’s question, what is [by counsel]: So to answer the want, these kids? you the names of [by Kavanagh]: No. A.
Q. parents? youDo the names want Board, and I believe when requested All from the School A. No. I me said, just give I I I all want Wade document e-mailed is— [anonymous] punishment numbers and student what on handle was and how the Board decidеd how to kids, issue these that’s all we want.
Q. you in that Why would be interested information? my job. city, A. it’s We partly Well because cover affairs schools, county, they’re taking against an and if action I think consequences needs know what the going of a certain are to be. behavior Fleenor, personal Unlike the Pioneer asserted issue, alleged injury resulting interest in the records at an personal those denial of records. The interest was necessary because the records were Pioneer’s work. As evidenced *6 hearing testimony, genuine from the Pioneer voiced a interest in this information, and required thus demonstrated the “true stake in Fleenor, government action.” 8. Pioneer stated an interest in the beyond redacted student records which extended the Fleenor, “common of interest all citizens.” 9. Pioneer established its injury provide as well. The Board’s failure to the injured records ability Pioneer’s by to exercise its to know the actions taken the government II, under Article Section and its freedom the press of under Article on report government. the actions of We conclude that Pioneer the requisite standing pursue has ¶20 this matter. 2. Did the err District Court when denied Pioneer’s to obtain the records: Privacy Act,
a. the Family Rights Does Educational (FERPA) § 1232g, prohibit U.S.C. of release redacted records? argues holding Pioneer that the District Court erred in that
FERPA precludes disclosure of the Board’s records. Pioneer contends that FERPA does protect requested the information it has because: (1) (2) requested FERPA; are records not “education records” under (3) records; FERPA of does disclosure redacted only prohibits FERPA of identifiable “personally disclosure Alternatively, argues information.” that even if FERPA did issue, protect the records at it does not the Montana preempt Constitution. correctly The that District concluded responds Board Court disclosing requested
that FERPA the School prohibits District parental records Board to Pioneer without consent. The contends regarding FERPA release of information prohibits identifying students, by law to required that Montana school districts are state restrictions, comply question and that the records with those identifying regarding contain the students. FERPA, Buckley Privacy also known as the Amendment Congress protect by
Act was enacted 1232g. receipt and their 20 U.S.C. FERPA conditions parents. § funding compliance their by federal educational institutions on by procedures allowing certain access such records prescribed other 20 U.S.C. parents restricting parties. students and access essentially 1232g(a). “spending FERPA been described as has provisions do not create individual legislation” and its disclosure 273, 279-81, Ct. rights. Gonzaga University Doe, 122 S. U.S. (2002). 2268, 2273-74 numerous Board statutes and administrative rules The cites prohibits that FERPA the release of
support argument of its 10.55.909(2) provides “[a]ll R. disciplinary records. Admin. M. kept aby and maintained school shall be educational records collected regulations according implementing in a confidential manner (FERPA) Privacy Act at 34 CFR Family Rights Educational M. requires Part that Admin. R. 10.55.909 99.” Board notes policies and procedures Montana school districts to “establish with state compliance use and transfer of student records that are turn, privacy.” In “student governing and federal laws individual addresses, students’ names and records” include such items achievement, dates, names, parents’ their their birth their levels of 10.55.909(1). Each Admin. R. M. and their immunization records. any disciplinary record action that school must maintain а is, educationally-related-that expulsion an action that results in *7 of the Admin. R. M. 10.55.910.1 suspension or out-of-school student. However, not to arguing apply that FERPA does Pioneer is not Montana, nor does of districts in that FERPA education records school FERPA does arguing ofthose records-it is prohibit not disclosure regarding of redacted records board not release identifiable personally which contain no disciplinary actions argues “[r]elease In the Board that the response, information. a redacted, would constitute records, even with the students’ names 1 regulations regulations also argues that and related federal The Board these However, has not Pioneer prohibit requested purposes of “student identification numbers.” the disclosure assigned particular students for identification the release of numbers Rather, system. has internal administrative within the school’s anonymously. disciplined requested only generic to a used to refer student number
237 rules, and of FERPA, of the fedеral the Administrative Rules violation However, disagree. we Montana.” files, records, as FERPA defines “education records” “those (i) directly
documents, and
materials
contain
other
which
(ii)
student;
by
agency
related to a
are maintained
an educational
person
agency
such
20
by
acting
or institution or
a
institution.”
1232g(a)(4)(A).
jurisdictions
disciplinary
U.S.C.
Other
have held that
§
defined by
do not
“education
See
records
constitute
records”
FERPA.
Univ.,
e.g.,
ex rel.
Miami
v. Miami
[A] access does prevent obtaining The Chronicle from information about crime on *8 campuses. injunction,
university Pursuant district court’s may disciplinary still records that Chronicle in personally Nothing the do not contain identifiable information. prevent releasing properly the FERPA would Universities from redacted records. at University,
Miami 294 F.3d in its that the specifically requested relief prayer disciplinary be from the records: students’ names redacted Court enter in its respectfully рrays judgment Petitioner (1) including: Respondent favor award relief That be ordered custody, in its related public make all documents given caught shooting plastic the students BB’swith any redacted[.] identifiable information personally identify any personally information that seeking Pioneer is not would prohibit of Since FERPA does not disclosure the students involved. information, personally identifying do there of records that not reveal public no under FERPA for Board’s refusal to release is basis documents Pionеer. that Although University arguably does demonstrate Miami disciplinary split courts are on whether student records federal FERPA, case consistent “education records” under that
constitute concluding prohibit that FERPA does not authority other redacted. personal the release of records which have all Thus, records constitute “education regardless disciplinary whether FERPA, redacted remain “education records” under or whether records FERPA, the is clear: FERPA does not records” under end result records, ofredacted student prevent public release concluding the District Court erred in so herein. the Montana Constitution authorize disclosure
b. Does the redacted records? not prohibit that FERPA does Because we have concluded records, argument need address Pioneer’s
release of the we However, the the Montana Constitution. preempt FERPA does the School prohibit even if FERPA does not Board further asserts that records, parents’ and thеir releasing District students’ nonetheless under the Montana Constitution privacy rights disclosure. to examine Noting that under Article is limited “in the deliberations bodies documents observe privacy clearly exceeds the of individual cases which demand disclosure,” Board contends merits of records expectation an actual parents have actions, expectation society and this is one deems Furthermore, compelling reasonable. Board asserts that there no mandаting state interest release these records to the media.2 *9 responds Pioneer Board’s refusal to disclose the records was violative the Constitution. Pioneer contends that the records at II, 9, issue are documents under Article of the Montana public Section Constitution, privacy justify and that concerns do Board’s not refusal to disclose the redacted versions of those documents. 1, in Becky We stated Butte-Silver Bow School Dist. No. 131, 136, 193, (1995), Bryan,
Mont. 906 P.2d reiterated ¶ 33, County, 18, and Yellowstone that: ¶ II, 9,
Any review of Article Section the Montana Constitution necessarily First, a three-step process. involves we consider whether the provision applies particular political against Second, sought. subdivision whom enforcement is we determine question whether documents in are “documents of public bodies” to subject public inspection. Finally, if first two requirements satisfied, are privacy we decide whether a interest so, present, is and if whether the demand of individual privacy clearly exceeds the merits of public disclosure. parties
The
do not dispute
body”
that the school
is a “public
district
for
the purposes
of Article
requested
and that the
documents
are public documents. We
previously
have
held that documents
relating
disciplinary
by
to
public body
public
measures taken
a
are
Co.,
documents. Great Falls Tribune
Inc. v.
County Sheriff,
Cascade
(1989).
238 Mont.
exceed the merits of public disclosure. To determine whether an individual has a constitutionally protected interest, privacy the Court (1) applies two-part a person test: whether had a involved (2) subjective actual expectation society privacy; whether is willing recognize expectation Barr v. Falls reasonable. Great 36, 18, 18, 107 Intern. 2005 MT 326 Mont. Airport, P.3d ¶ It is clear that Pioneer is requesting identity rather, BB incident; students involved in the wants shooting simply disciplinary know what action the Board took. The imposed school, by particularly Board on students of challenged meeting has not decision consider Board’s to close what action to take. actions, injurious public is a matter of concern. potentially
involved have privacy that unidentified students a Board’s assertion upon them would imposed interest in the measures which the Board’s action general report about unpersuasive. Disclosing suspended matter that “Student #3 was is days shooting property’ for BBs on school does not from school two rights privacy parents’ student’s or that student’s violate the Any #3.” idеntity does not reveal the of “Student report because such here, subjective given request, Pioneer’s limited expectation of society outweighed by by would not be considered reasonable disclosure. the merits of that she urges Kavanagh The Board us consider that testified
already parents were involved what she knew which students town, Pioneer, allow who the Board had “heard” around which would obligated publish “to respect privacy, *10 action, her, rumor mill. by governmental but small town infоrmation, such Although superior conduit of revelations possibly balancing mitigate into test nor do not factor the constitutional government’s obligations. constitutional for the redacted documents We conclude that Pioneer’s ¶38 was not the School Board’s action regarding outweighed by interests issue. Pioneer is entitled any privacy at measures copy regarding redacted of the Board’s records imposed upon students. reasons, of the District Court is For the decision foregoing
¶39 proceedings further consistent reversed. This matter is remanded for herewith. NELSON, GRAY, WARNER and JUSTICES
CHIEF JUSTICE COTTER concur.
JUSTICE NELSON concurs. briefly on separately I in I to comment concur our decision. write ¶40 Dist., 31, 331 2006 MT Darby v. School this Court’s decision Fleenor Court have few decisions of this 124, 128 1048. There been Mont. P.3d and over-read. memory so misunderstood in recent which have been providing public officials read the decision as representatives Media 9, open and Montana’s to flaunt Article carte blanche laws, boards, organizations and school trade meeting and some 241 Neither appear agreed bodies have the media’s assessment.1 were correct. points out, sue is a threshold Opinion standing As our here litigation.
requirement jurisprudence commencing under American for State, 361, We MT Armstrong stated in Mont. ¶ (citation omitted), standing test for P.2d complaining party alleges past, present whether the or threatened injury property right. alleged to a or civil The harm can be common to general still public, petitioner but must affect the individual (citations omitted). ways Armstrong, not common to the public. 6-7 ¶¶ standing anybody Without a requirement, anyone could sue anything-even if plaintiff absolutely nothing gain had to lose or litigation. standing problem, Fleenor, While denominated as a more accurately, involved a pleading problem. Fleenor’s complaint complaint amended so poorly allege were drafted that failed she or personal injury litigation-the stake in the requirement fundamental begin noted, any lawsuit. As we for standing threshold is not high, but it does-and must-exist. Court very say This was careful to Fleenor, that and that. only See 11-12. ¶¶ Fleenor never did stand for the can proposition, nor it be read as public’s a diminution fundamental constitutional to know the abrogation of Montana’s opening meeting hype laws-all of the contrary, hoopla notwithstanding. I concur. joins Cotter Justice in the Concurrence of As Justice Nelson. Fleenor, author of I concur in Opinion both the and Justice Nelsоn’s Concurrence. *11 2006) Spin Rights,” See “Court’s (February Curtails Public’s Missoulian (available http://www.missoulian.com/articles/2006/02/28/opinion/opinion6.prt); at Gwen Florio, “High Ruling Up Court School Board Stirs Sunshine Laws” Great Tribune Falls (March (March (available Open Meetings,” 8,2006); 9,2006) “The Court and Helena IR http://www.helenair.eom/articles/2006/03/09/opinions_top/a04030906_01.prt); at (March 2006). Cartoon,
Watson, Billings Outpost notes students’ [discipline] with the story containing the information records However, already in identifying possession.” their disclosed Kavanagh’s prior possession information in was identifying