65 Op. Att'y Gen. 1 (1976)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 2-76

2 February 1976

Anti-Secrecy; Public Records;

Pupil information which local education
agencies are required to release to the
Department of Public Instruction under
the reporting provisions of Chapter 89,
Laws of 1973, may be provided, with or
without permission, without violation
of the state or federal confidentiality
statutes, Section 118.125(e), Stats.
and Section 438, P.L. 93-380.

DR. BARBARA THOMPSON,
State Superintendent
Department of Public Instruction

You have asked my opinion regarding the
extent to which the flow of information from
local to state education authorities is
restricted by Section 438, P.L. 93-380, known
as the Family Education Rights and Privacy
Act, and by Section 118.125, Stats., which
regulates the dissemination of student
records in Wisconsin.

In particular, you wish to know whether local
authorities may be compelled to release to
the Department of Public Instruction
information concerning children receiving
special education services under Chapter 89,
Laws of 1973, when permission for such
release has been granted in accordance with
the provisions of the above cited
confidentiality statutes.

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It is my opinion that local agencies are
required to release such information
to your department.

This information must be made available with
or without permission from the persons
affected, or their parents or guardians,
although such permission should be obtained
whenever possible.

Chapter 89, Laws of 1973, presents a
comprehensive plan for the instruction
of Wisconsin children with special
educational needs.

That chapter begins with
the declaration that:

   It is the policy of this state to
   provide, as an integral part of free
   public education, special education
   sufficient to meet the needs and
   maximize the capabilities of all
   children with special educational needs.

Since the adoption of the Wisconsin State
Constitution, the state superintendent of
Public Instruction has exercised supervisory
powers over public instruction in this state.

Article X, Section 1, Wisconsin Constitution

The state constitution also provides for
local school districts which have
traditionally wielded the primary
decision-making power for
schools under their care.

See particularly Sections
120.12 and 120.13, Stats.

Chapter 89, Laws of 1973, reflects this
long-standing allocation of powers and
responsibilities between state and
local educational authorities.

The responsibility for coordinating the
development of all special education
programs and services in Wisconsin
belongs to the Department of Public
Instruction, particularly the Division
for Handicapped Children created within
the department by Section 115.77, Stats.

Local school districts are charged with the
actual provision of necessary services.

Chapter 89, Section 1 (3), Laws of 1973.

To facilitate the state-wide development of
effective special education programs, and to
ensure that appropriate services are made
available to each child who needs them, local
agencies are required to submit information
concerning local programs and students
enrolled in local programs to the state
education authority.

Sections 115.84, 115.85(1)(c), 115.85(3),
115.87(5)(a), and 121.05(1)(a), Stats.

In each instance, the reporting requirement
is couched in mandatory terms.

The flow of information from local agencies
to the state authorities is part of the
essential structure of the Chapter 89
program.

Without detailed information concerning local
programs, the department, particularly the
Division for Handicapped Children, would be
unable to perform its supervisory and
coordinating functions.

In addition, funds for books and equipment,
salaries, transportation, board and lodging
and for development of new programs are
administered by the department.

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Receipt of funds by local agencies is
predicated on the evaluation of reports
filed by these agencies with the department.

Section 115.88, Stats.

There are several instances in which
personally identifiable information
concerning particular students is essential
to performance of duties of the
superintendent, the department and the
Division for Handicapped Children.

These situations arise when the approval of
the superintendent or the Division for
Handicapped Children is required for
providing specified services to
individual children.

Such services include transportation under
secs 115.77(3)(e), 115.86(8), 121.54(3) and
(4), Stats., and placement of pupils in
facilities outside the state,
Section 115.85 (2)(c), or
in a private facility,
Section 115.85(2)(d), Stats.

The confidentiality of public
school pupil records is protected
by Section 118.125, Stats.

This statute declares that all pupil records
maintained by a public school shall be
confidential, and authorizes local school
boards to adopt rules for that purpose.

Section 118.125(e), Stats., provides for
release of personally identifiable records of
students where written permission has been
granted by an adult student or the parent or
guardian of a minor student.

When such authorization has been given, it
extends only to the official specifically
named by the student or his parent
or guardian to receive the information.

The federal Family Educational Rights and
Privacy Act similarly permits the release
of personally identifiable records or
files of students upon the written
consent of their parents.

Section 438 (b) (2) (A). P.L. 93-380.

Section 118.125(2)(g), Stats., provides that
a school board may release to the department
any information required under the school
laws, chs. 115-121, Stats.

This release of information is not
conditioned upon a grant of permission
by the student or his parent or guardian.

The federal statute appears to dispense
similarly with the requirement of written
permission for release of personally
identifiable information when the recipients
of such information are

authorized representatives of. .
State educational authorities.

Section 438 (b) (1) (C) (iv). P.L. 93-380.

Clearly, the members of the department
authorized under Section 118.125(2)(g),
Stats., to receive information qualify as

   "State educational authorities."

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The federal statute is, however, not entirely
unambiguous, in that it also provides that
data collected by state educational
authorities and other enumerated entities

shall not include information . . which
would permit the personal identification
of such students or their parents after
the data so obtained has been collected.

Section 438 (b) (3), P.L. 93-380.

A reasonable interpretation of this language
is that state educational agencies may
collect and, by necessary implication,
use such personal information, but, as a
safeguard to students, may not divulge
such information to other entities not
specifically authorized to receive it
under Section 438 (b) (1), P.L. 93-380.

It is my opinion that, when permission has
been granted, neither the state, nor the
federal statute presents an obstacle to
full compliance by local authorities
with the reporting requirements of
Chapter 89, Laws of 1973.

When information is required or requested by
the department in accordance with the
provisions of Chapter 89, local agencies and
officials may not withhold such information,
and may if necessary be compelled
to release it.

Although the federal act apparently protects
local schools in their eligibility for
federal funds when they release personally
identifiable data to state educational
authorities without written permission
from the student or his parent or guardian,
the language of the federal act is not
entirely free from ambiguity.

Wherever possible, therefore, prior written
permission for release of personally
identifiable information should be obtained,
especially in the case of local school
districts which receive federal funds.

BCL:JWC

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