Q: To what extent are school district settlement agreements public when they contain confidential student information?
A: Copies of settlement agreements that school districts enter into are subject to disclosure under the Public Records Act.
Although it should generally be possible to draft a settlement agreement without including material so sensitive that it qualifies for an exemption from disclosure under the PRA, it is conceivable that a settlement agreement might contain material legitimately exempt from disclosure under state or federal law.
Yet even in that unusual circumstance, the agency (in this case, the school board) should disclose the agreement with the exempt material redacted. Govt. Code § 6253(a) (“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”).
Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Settlement agreements where one of the parties is a public agency are generally not exempt from disclosure under the Act. See Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909 (1984) (documents related to settlement with county jail inmate subject to disclosure, with possible exception of crime report and rough notes made by county’s risk management staff); Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376 (1998) (settlement reached between school district and student required to be unsealed from trial court record under analogous trial court rules); Sanchez v. County of San Bernardino, 176 Cal. App. 4th 516, 526 (2009) (confidentiality provision in settlement agreement with county would have violated Public Records Act).
As for whether “confidential student information” would be exempt from disclosure, that would depend on the information and the facts of the situation. Certain student records are confidential under state and federal law, but the scope of those laws is fairly narrow.
For example, California’s Education Code provides that:
“[a] school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order” except in certain situations. Ed Code § 49076. Note, however, that “pupil records” is defined as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district or required to be maintained by an employee in the performance of his or her duties whether recorded by handwriting, print, tapes, film, microfilm or other means.” Ed Code § 49061(b).
For purposes of the statute, directory information “means one or more of the following items: pupil’s name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the pupil.” Ed Code § 49061(c).
It is not at all clear that information that may relate to a student in a settlement agreement would be likely to be considered a “pupil record” under these provisions. It is more likely that a court would consider whether the information at issue might unreasonably intrude on a student’s privacy interests, either based on the § 6255(a) exemption noted below or on California’s constitutional right to privacy.
Note that in ordering an investigative report about alleged wrongdoing by a school superintendent disclosed under the PRA, the Court of Appeal ordered names, home addresses, and phone numbers of students, parents and staff members interviewed in the report to be redacted where:
“the public’s interest in viewing the … report is not furthered by knowing the identities of any of [those individuals.]. Knowing their identities does not help the public understand how the Board responded to the allegations involving [the superintendent].” BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 759 (2006).
Whether student information in the settlement agreement you reference could be redacted prior to disclosure would likely depend in large part on what exactly would be disclosed and the relationship of that information to the agreement and underlying dispute.
I should also mention that when no specific exemption applies, agencies often attempt to withhold records from public disclosure by citing the Act’s “catch-all” exemption, contained in Government Code § 6255(a).
This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).
The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.