The complainant Frances Taylor filed the complaint on behalf of herself and the complainant, The Reminder News. Subsequently, Frances Taylor left her employment at The Reminder News. At the hearing, Ms. Taylor and The Reminder News appeared as separate complainants. The caption of the case, above, has been amended to indicate that Frances Taylor is now an individual complainant.

     The above captioned matter was heard as a contested case on August 23, 2012, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint. A first report of the hearing officer was issued on September 28, 2012, but was not deliberated upon by the Commission.

     After consideration of the entire record, the following facts are found and conclusions of law are reached:

     1.  The respondents are public agencies within the meaning of §1-200(1)(A), G.S.

     2.  It is found that by letter dated March 7, 2012, the complainants made a request to the respondents for “access to and copies of school district reports pertaining to the investigation of the school pool drowning at East Hartford High School of freshman student Marcum Asiamah on Jan. 11 2012 [sic]” (the “requested records”).

     3.  It is found that by letter dated March 12, 2012, counsel for respondents denied the complainants’ request, citing six exemptions, including the exemption set forth at §1-210(b)(17), G.S., for educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act.

     4.  It is found that, by letter dated March 28, 2012 and filed with the Commission on March 30, 2012, the complainants appealed to the Commission, alleging that the failure of the respondents to provide the requested records violated the Freedom of Information Act (“FOIA”).

     5.  Section 1-200(5), G.S., provides:

          “Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

     6.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

          Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

          ...

          Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.

     7.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

     8.  At the hearing, the respondents agreed to submit the requested records for an in camera inspection. Such records were filed on August 30, 2012 and are hereby identified as IC-2012-180-1 through IC-2012-180-31.

     9.  The respondents claim that §1-210(b)(17), G.S., exempts the requested records from mandatory disclosure.  Section 1-210(b)(17), G.S., provides that disclosure is not required of “[e]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g . . . ” (“FERPA”).  The respondents further claim that the requested records are “education records” under FERPA which contain “personally identifiable information” about a student, as defined in the regulations implementing FERPA at 34 C.F.R. §99.3. 

     10. “Education records” are defined at 20 U.S.C. §1232g(a)(4)(A) as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.

     11. Title 34, §99.3 of the Code of Federal Regulations provides that:

          Personally Identifiable Information

          The term includes, but is not limited to--

          (a) The student's name;
          (b) The name of the student's parent or other family members;
          (c) The address of the student or student's family;
          (d) A personal identifier, such as the student's social security number, student number, or biometric
record;
          (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;
          (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the
relevant circumstances, to identify the student with reasonable certainty; or
          (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. (emphasis added)

     12. Based upon the use of the relevant student’s name in the letter of request (see paragraph 2, above), it is found that the complainants know the identity of the student to whom the requested records relate.

     13. Based upon inspection of the in camera records that the respondents claim to be exempt pursuant to FERPA, it is found that the entirety of the requested records relate to Marcum Asiamah and his death. None of the requested records would even have been compiled by the respondents, who maintain the records, but for the fact of Marcus Asiamah’s death. It is also found that Marcum Asiamah was a minor at the time of his death.

     14. It is therefore concluded, pursuant to the broad definition at 34 C.F.R. §99.3(g), that all of the requested records constitute “personally identifiable information”.

     15. It is also concluded that the requested records constitute “education records” as defined at 20 U.S.C. §1232g(a)(4)(A).

     16. It is generally the case that privacy rights, including FERPA rights, do not survive death. However, FERPA rights are vested in a student’s parents until the student reaches age eighteen. 20 U.S.C. 1232g(d). Because there was no evidence that Marcum Asiamah’s parents were both deceased, or that they had executed a written consent to disclosure of the requested records [20 U.S.C. 1232g(b)(1) and (b)(2)(A)], FERPA rights have not been waived, despite the death of the parents’ minor son.

     17. It is finally concluded, therefore, that the requested records are exempt from disclosure pursuant to §1-210(b)(17), G.S., and that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by withholding the requested records.

     18. Because the requested records are held to be exempt from mandatory disclosure pursuant to §1-210(b)(17), G.S., the Commission declines to adjudicate the respondents’ alternative claims of exemption. 

     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its special meeting of February 21, 2013.

__________________________
Cynthia A. Cannata
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Frances Taylor
49 Jeffery Alan Drive
Manchester, CT  06042

The Reminder News
c/o Joan Hunt
130 Old Town Road
Vernon, CT  06066

Superintendent of Schools, East Hartford
Public Schools; and East Hartford Public Schools
c/o Scott R. Ouellette, Esq.
Williams, Walsh & O’Connor LLC
37 Broadway
North Haven, CT  06473

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-180/FD/cac/2/21/2013