Page 1 of 3

Cohn, Gary
From: Sent: To: Cc: Subject: Cohn, Gary Thursday, October 21, 2010 11:05 AM Petersen, Edwin 'Hughes, Valerie (Perkins Coie)' RE: Confidential Student Records

Attachments: Vanderwilt Email (Olson) 20101012.pdf; Goins Statement (2).pdf Ed, Val Hughes shared with me the email series below related to the "OSPI Complaint No. 10-08" director request on which we have been working. It appears from this information that the individually identifiable student records Jessica Olson removed from a district file will not be returned. Jessica is raising questions about directors' access to student records. Val is not planning any further communication with Jessica on this matter at this time. I am forwarding this note to let you know that I believe the status is unresolved, and that the subject of individual director access to student and staff records that are not public records should be addressed at least in our Board-Superintendent Operating Protocol. You will find attached pdf copies of the staff accounts of their experience with Jessica last week at which time the individually identifiable student records were removed from the superintendent's custody. Dr. Gary Cohn Superintendent

From: Jessica Olson [mailto:jessicaeverettschoolboard@gmail.com] Sent: Tuesday, October 19, 2010 11:47 AM To: Hughes, Valerie (Perkins Coie) Cc: Ed Petersen Subject: Re: Confidential Student Records

Valerie -Are you aware that the superintendent told the board that the records regarding this complaint being held in his office for directors' inspection were copies, and that afterwards he was sending these copies back to be destroyed? Thus, I am in possession of a copy -- not the original -- of the OSPI complaint acknowledgment letter, which means the original complaint file remains intact within the district. [I don't think this fact was addressed during our phone conversation when I told you I could return the document once finished with it if it was necessary for me to do so.] As you may or may not know, the FPCO (Family Policy Compliance Office -- the federal entity responsible for enforcing FERPA) ruled long ago that no violation of FERPA will be construed by the release of student identification information to school board members, as it is presumed that school board members are among those school personnel that are deemed to have "legitimate educational interest" in records containing personally identifiable student information (absent, of course, obvious information indicating the contrary, the same standard to which other school personnel are held). Furthermore, this OSPI complaint letter is really no different than viewing a contract, voucher or field trip form containing student information as far as access to student privacy information under FERPA is concerned. And the entire board has certainly received that type of information for its review --and possession-- in the past. So being that I am in possession of a COPY of an unredacted document a school director is fully entitled to see, and being that the district continues to possess all the original documents belonging to the student file of the student in question, I think we can all rest easy that the

10/21/2010

Page 2 of 3

district is in compliance with its obligations under federal and state law regarding confidentiality and privacy rights of students and their families. [As an aside, I would like to note that you and I also discussed that it would be the improper release of student info which could potentially cause a problem with FERPA and the FPCO -- not just the mere possession of a document by a school director, much less a copy of the original document -- which is what I have.] I also want to point out that Debbie was perfectly willing to let me have this document, it is just that she expressed a desire to redact the document first. Since I know the law does not prohibit school directors from viewing and/or possessing copies of any unredacted documents held by the school district they were elected to govern for use in the exercise of their duties as public officials, I told Debbie that I preferred my copy to remain unredacted. But Valerie, if you were to tell me the district made a mistake, and that instead of a copy (as the superintendent had indicated), the board was actually presented with the original documents to inspect? Meaning my "copy" is actually an original -- that would be a different matter entirely. I would of course return that document to the district office right away (after making a copy, of course) if the superintendent has made a mistake. Please let me know if the document I have is an original; it sure looks like a copy to me, but stranger things have happened. Perhaps you could ask the superintendent to double check if what he told the board regarding the copy of this file was the correct information. Please also give me any other legal advice you have that is contrary to my understanding of FERPA, as I just outlined to you above. I always want to make certain that we school directors are in compliance with the law, and therefore welcome any additional information that may enhance that understanding. Let me know soon, as the meeting is just a few hours away. Thanks. Jessica Olson

Everett Public Schools Board of Directors, Position #4 (425) 772-0437

On Oct 18, 2010, at 4:24 PM, Hughes, Valerie (Perkins Coie) wrote: Dear Mrs. Olson, We spoke last Wednesday about the confidential student records you removed from the District office on Tuesday, October 12. You said that you would return them to the District office once you had the opportunity to review them. As you know, the records you took are unredacted and contain personally identifiable information about a special education student, including parent name, student name, and the school the student attends. You were provided by email later on Wednesday with a complete copy of the same records you took, but in redacted form. You should now be able to return the unredacted records as you have the redacted records to review. Given that there is a school board meeting tomorrow, we ask that you please

10/21/2010

Page 3 of 3

return the unredacted records to the District office when you attend that meeting. This will ensure that the District is in compliance with its obligations under federal and state law and District policy to maintain the confidentiality of student records and the privacy rights of students and their families. Thank you, Valerie

Valerie L. Hughes | Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 PHONE: 206.359.8840 FAX: 206.359.9000
E-MAIL: vhughes@perkinscoie.com

IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department and IRS regulations, we inform you that, unless expressly indicated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein (or any attachments). ********** NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.

10/21/2010