FOIA Requests for Restraint and Seclusion Documentation from Media Outlets

Clark Hill PLC

Recently, several school districts have received FOIA requests from media outlets, including the Detroit Free Press, seeking completed restraint and seclusion documentation. Pursuant to state law, FOIA requests must be fulfilled unless a specific, applicable exemption exists. One such exemption prohibits the disclosure of information that, if released, would violate the Family Educational Rights and Privacy Act (“FERPA”), 20 USC 1232g.

Under FERPA, education records, including personally identifiable information, cannot be disclosed without the express written consent of a student’s parent or guardian. FERPA defines education records as “Records, files, documents, and other materials containing information directly related to a student, which are maintained by an educational agency or institution or by a person acting for such agency or institution.”

Completed restraint and seclusion documents are clearly education records pursuant to FERPA. If a FOIA request for completed restraint and seclusion documents is received, proper care must be taken to ensure that no personally identifiable information or education records are disclosed. Keep in mind that information regarding the reporting of restraint and seclusion is publicly available on the Michigan Department of Education website.

Pursuant to the FERPA privacy provisions, if a school district determines that there are responsive records to disclose, the district must ensure that the records are redacted in such a way that individual students cannot be identified from any of the information contained on the documentation that is disclosed. Note, this may include the redaction of questions if such a question may allow the reader to identify information directly related to a student. Given the sensitive nature of the information contained in restraint and seclusion documentation, required redactions will likely go beyond those typical in other requests for records.

Please be aware that in a 2019 unpublished, and thus non-precedential, decision from the Michigan Court of Appeals, the court ruled that a school district should disclose student bus discipline records after redacting all personally identifiable information from the record. The school district objected to such disclosure stating that the redactions were such that the record became unrecognizable and unusable. The court reasoned that once the student was not identifiable, the record was no longer directly related to a student, and thus no longer an education record.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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