The Student Press Law Center blog

From the SPLC Legal Network: A new FOI obstacle for journalists who need access to student testing data

A recent opinion by the Virginia Supreme Court illustrates just how closely requests for teacher-specific information can be scrutinized, and drives home the importance of carefully considering an open-records request before making it.

In Virginia Education Association v. Davison, the wording and punctuation of a Virginia Code section resulted in a reversal of a lower court’s decision to require production of student testing results on a teacher-by-teacher basis. In short, grammar matters—particularly when analyzing and applying a statute.

The Request

Brian Davison, a Loudon County parent, requested student growth percentile (SGP) test results for students in his district's public schools. Specifically, Davison sent a Virginia Freedom of Information Act request to the Virginia Department of Education (VDOE) for English and math aggregated score results for Loudon County Public Schools, sorted by teacher and by school over the past five years.

After attempts to reach a resolution with VDOE failed, Davison filed a verified petition in October 2014, asking the circuit court order VDOE to produce the requested test results. The circuit court found that the VFOIA exemption for scholastic records (Va. Code Section § 2.2-3705.4) and federal protections did not apply, and ordered that the information be provided. The circuit court rejected VDOE’s argument that Davison’s request would require creating a “new public record” and noted that the department admitted that its database could produce reports of the requested information without disclosing student identifying information.

Approximately a month after the ruling, the Virginia Education Association teacher organization and Loudon County School Board filed motions to intervene in the case. The circuit court allowed the school board to intervene for the limited purpose of asserting an exemption for “aggregate teacher performance indicators or other data” as being confidential portions of teachers’ personnel files as defined in Code § 22.1-295.1(C). VDOE was also allowed to raise the same issue on rehearing.

Nonetheless, the circuit court again sided with Davison on rehearing, finding that the records did not qualify for an exemption to the FOIA law that allows agencies to withhold teacher performance indicators. The court found that SGPs could be used for teacher evaluations, but had not been used as a teacher performance indicator by the Loudon County Public Schools.

The Virginia Supreme Court Decision

On appeal, the state supreme court reversed, focusing on Code § 22.1-295.1, which at the time provided in part:

C. Teacher performance indicators, or other data used by the local school board to judge the performance or quality of a teacher, maintained in a teacher’s personnel file or otherwise shall be confidential but may be disclosed (i) pursuant to court order, (ii) for the purposes of a grievance proceeding involving the teacher, or (iii) as otherwise required by state or federal law. Nothing in this subsection shall be construed to prohibit the release or to limit the availability of nonidentifying, aggregate teacher performance indicators or other data.

The Virginia Supreme Court agreed with VDOE and the School Board that SGP data remains a teacher performance indicator and confidential regardless of whether it was actually used in evaluating teachers. Based upon the comma usage, the Virginia Supreme Court concluded that the phrase “used by the local school board” referred solely to the phrase “other data”—and not to the phrase “teacher performance indicators.”

The court found that the SGPs requested by Davison are confidential pursuant to Virginia law regarding teacher personnel files, meaning VDOE could not produce results on a by-teacher basis.

The Amended Code Section

As noted in the Supreme Court’s opinion, the first sentence of subsection C of Code § 22.1-295.1 was amended, effective July 1, 2016. Before the circuit court entered its final order and the defendants appealed, the state legislature revised subsection C, likely to address the circuit court’s interpretation of the prior version:

Teacher performance indicators or other data collected by or for the Department of Education or the local school board or made available to and able to be used by the local school board to judge the performance or quality of a teacher, maintained in a teacher's personnel file or otherwise, shall be confidential but may be disclosed, in a form that does not personally identify any student or other teacher, (i) pursuant to court order, (ii) for the purposes of a grievance proceeding involving the teacher, or (iii) as otherwise required by state or federal law.

This revised language arguably extends confidentiality further than under the original provision by replacing “used” with “collected” or “made available to and able to be used by.” In balancing the interests of public accountability and individual privacy, the Virginia legislature appears to favor privacy for its teachers.

Nonetheless, it is important to remember that Virginia, like most states, provides access to some form of de-identified records. The state law at issue in this case specifically stated (and still states) that the exemption does not “prohibit the release or ... limit the availability of nonidentifying, aggregate teacher performance indicators or other data.”

Going Forward

As discussed in a prior SPLC post, there is a great deal of variation among states regarding access to teacher evaluation records. It is important to be familiar with the parameters of open-records access in your particular state.

This case drives home two lessons for those who report on education issues: (1) Consider whether your story requires the level of specificity your FOIA request seeks; and (2) consider a conversation with the agency's records custodian to find an acceptable compromise. As Davison did, know what kind of information and reports the state releases regarding the subject matter you are pursuing so that you are prepared to challenge limitations and exemptions that the agency may claim.

Karen Williams is a counsel in Cozen O’Connor’s Criminal Defense & Internal Investigations practice and a member of SPLC’s Attorney Referral Network. She is the author of “Disparity in Copyright Protection: Focus on the Finished Image Ignores the Art in the Details,” published in the American University Law Review. Prior to law school, Karen was a news designer at The Charlotte Observer.

Tagged: freedom of information, freedom-of-information, news, news-recent, public records, recent-news, teacher evaluations

Q&A: Patrick File talks Nevada’s “now or never moment” with passing a New Voices law

In June, Nevada became the next state to pass “New Voices” legislation designed to give specific protections for student journalists. Where other states have struggled for years to get this type of law passed, the entire process took a matter of months in Nevada.

The law will go into effect on Oct. 1 and provides stronger First Amendment protections for students in both public high schools and universities.

Patrick File is an assistant professor of media law at University of Nevada – Reno’s journalism school. Also a former intern and longtime supporter of the SPLC, he was recruited from that connection to help lead the push for a New Voices law.

Here’s what File had to say about his experience getting this legislation proposed, sponsored and passed so quickly.

Note: This interview has been edited for clarity and length.

Can you talk about how you personally got involved in the New Voices movement?

PF: I think my involvement started the way a lot of folks have, in these kind of recent efforts, where i got a call from [former SPLC executive director] Frank LoMonte back in ... I wanna say April of 2016. He said this is something that had been beginning to sweep the nation with North Dakota and then Maryland, there seems to be some momentum building behind the New Voices effort and I came to his mind as someone who’s been a supporter of the Student Press Law Center and as somebody in a state where he thought we had a pretty good chance of pursuing this legislation. So he reached out to me as well as some other people in the state that he knew through the Journalism Education Association and through the SPLC’s volunteer attorney network and we started building a bit of a coalition of folks looking into this and seeking a sponsor, and looking toward the 2017 legislative session to see if we could get a bill passed.

The bill was sponsored by a Democratic senator. Can you talk about, was there bipartisan support, did you have any kind of party influence with how this was received?

PF: We reached out to folks on both sides of the aisle. I would say overall we’ve probably contacted about six or seven legislators, both members of the assembly and then members of the senate, initially. I’m not sure how unique this is, but in Nevada legislators are limited to the number of bills they can propose before the session. So we were kind of competing with other issues and with other interested parties on other bills, so some folks had to come back to us and say “This is something that I’d vote for and something I would support, however I’ve already committed to my maximum number of bills.” So that was something that was a little bit of a struggle and forced us to get right out in front of the issue before the session started, which was probably a good thing. But we were pretty confident really early on that student free speech and student free press were issues that are bipartisan in nature and are not something that is necessarily a Democratic issue or a Republican issue, so reflecting that we reached out to people on all sides of the aisle.

Steven Bates is a professor of media law at the journalism school of UNLV and he had a few connections through some of the time he’d spent with the ACLU and with a couple of other legislative types of efforts in state government and he was able to connect us to senator [Nicole] Cannizzaro a few weeks before the session started. She was an active high school debate participant and somebody who felt like she had benefited from extracurricular activities at school that had benefitted from freedom of speech and the opportunity to address controversial issues and deal with the issues of the day and kind of provide student perspectives on those things. She was a new senator and really felt like she could really contribute to bettering our schools statewide and so she was really enthusiastic about it from the get go and we were obviously happy for that.

It sounds like you guys working on this didn’t have a ton of prep or official backing and support initially and you kind of just hit the ground running. Can you talk about what it was like to spearhead this?

PF: It basically just comes down to coalition building. We have a very short legislative session that begins in February and ends in June. So it really is just a sprint, and you’re kind of running around trying to find folks that you think would be supportive of the idea and supportive of the bill and you get them to sign on and offer their support in the form of a letter or some testimony.

Right away, probably the most crucial player in all of it was the Nevada Press Association. In many cases, the people that are working on these New Voices bills don’t have a lot of experience, and that was the case for me. I hadn’t worked on any kind of legislative effort before and so I was really leaning on Barry Smith and the Nevada Press Association for their expertise and their guidance on how to share information, who to seek out to talk to and how to build this coalition. The state Journalism Education Association provided some help in the form of email blasts and trying to get advisers on board and encourage advisers interested in getting involved, perhaps getting students involved. We had several students come down to Carson City and testify in favor of the bill.

It’s a reminder of that quote, “why a small group of dedicated individuals can make change in democracy is partly because it’s the only thing that ever has.” I remember that quote from “The West Wing” but it might actually come from somewhere else. We had a dedicated core of people like Barry Smith from the Nevada Press Association and Steve Ranson who was a triple threat for us as a newspaper editor and a Nevada Press Association president and president of the International Association of Weekly Newspaper Editors as well as a former student media adviser. He was all of that in one person to come and say “I’ve got this expertise and I’ve got this experience and I think that everybody should support this bill.” We had a handful of high school newspaper and yearbook advisers north and south that jumped on board and tried to get the word out and get their students involved. That core of people kind of connected us into a wider network of folks.

I think that we timed some of our communication about the issue pretty well. I tried to avoid bombarding people who were interested but not fully engaged with the issue with information. There’s a website where you can post comments once a bill has been proposed to the legislature and I think we got a good critical mass of people to voice their support of the bill in the right moment. I would argue that eased fears that some legislators might have had but also gave legislators who weren’t fully aware of what the bill was all about some confidence that their constituents favored it and it was something they could safely vote in favor of and safely support knowing that their constituents were on their side.

You described this as a sprint and it sounds like this was a very fast process. What was that like?

PF: Again, Barry Smith sort of laid this all out for me. I believe the session started on Feb. 2 and ran through June 2… it’s like 120 days. We had a really, really tight time frame. It was a drawback because it was like you have this amount of time to get your sponsor and to get your bill on and the legislature can only hear so many bills in so much time. But I think in some ways it was a benefit, because it’s this big expenditure of energy, this big burst all at once rather than this sort of ongoing effort trying to keep people interested, keep people engaged. So I would say it had as many positive sides as it did negative sides, the fact that we have such a quick session.

The other thing is there’s this sense of urgency around it too. Our legislature only meets every two years so if we didn’t get it done by June of 2017 we were gonna have to wait until effectively June of 2019. It was kind of a now or never moment in the broader context of the role of engaged citizenship and truthful, accurate, responsible journalism and the role of that in a democracy. That certainly helps this be kind of a front burner issue for a lot of our constituents as well as the legislators.

Going back to that idea of timing, why do you think nationally the rate of these bills coming through has increased and we’re seeing a lot more focus on this issue? What is it about this moment that’s making that happen?

PF: At the end of the day — the president’s ire for the press notwithstanding — people can appreciate the value and the need and are thinking about good, responsible journalism in a democratic society. At the same time I think folks are concerned about the issue of free speech on high school and college campuses and whether or not we’re having a full and frank exchange of a variety of views on campus. I think this is something that’s effectively bipartisan. You’re as likely to face challenges for having conservative viewpoints on your campus as you are for having liberal ones. That’s something a lot of kids are bringing home from school and students are talking about on campus so it’s making its way to the state houses that way. It’s one of the defining issues of our time is sort of this overlay of our rancorous soundbite-based politics that I don’t think anybody is all that happy with these days. One of the things we’re saying is if we need a better journalism in our democracy, we need to make sure we’re affording students the opportunity to learn about media literacy, engaged citizenship and if students don’t have robust first amendment rights they’re not going to be able to do that and our democracy ultimately suffers.

Let me take a step back and ask you more generally why do you, personally think that having these specific protections for student journalists is so important?

PF: I have a fundamental, vested interest as someone who studies the First Amendment and then somebody who works at a journalism school in the connection between freedom of speech, freedom of the press and good journalism that serves a healthy democracy. I see, on a very personal level, in my classroom, sometimes very fundamental misunderstandings of how the first amendment works and how freedom of the press works. When some students from public schools in Nevada come to my classroom and we have to do a lot of backfilling, and a lot of review, and a lot of “here’s the basics of how the first amendment works.” Ultimately, I hope I’m doing a good job of straightening students out or fill them in where they might be missing some things but I can tell you that a lot of my students are also from California, a state where they’ve had anti-Hazelwood, New Voices type of protections for decades.

My Nevada students will come into my class and talk about the ways in which they’ve been chilled or silenced or censored in the classroom and the California students are kind of baffled by that. They’ll say “what are the schools afraid of? We had a very robust student media at my school — they talk about all kinds of controversial issues and it didn’t result in fights breaking out and people going home bullied or having been exposed to ideas they shouldn’t have been exposed to and I feel like it contributed to me having a good education.” That’s something I’ve noticed in my own classroom and hopefully the New Voices law in Nevada will help correct for that. It’s not as though we’re some sort of First Amendment wasteland. If you look at the media law landscape of Nevada, I would say that the lack of the New Voices type of protection was really kind of an exception to an overall rule of a state and a political realm that really appreciates the value of free speech, the value of the First Amendment, the value of a robust and well protected press with things like a really strong shield law and generally pretty good open records laws — there’s always room for improvement there — but things like that. That’s part of why it was an easy sell here as well. Parents of students in Nevada schools can appreciate the value of and the need for a robust protection for students’ free speech rights.

What would you tell other people who are interested in passing this sort of legislation in their own states?

PF: Every state where this has happened, it has taken a relatively small core of dedicated people to get it done. At times it feels like it’s a lot of work or feels sort of frustrating. Finding not necessarily a lot of people to support you, which of course would have been great, but it was just as important to find the dedicated people who could really see the value in this and were willing to put in the time writing long emails or talking with a legislator or to go to a legislative session or hearing and testify. It took a little while for us to find those people or for those people to find us. Ultimately it wasn’t so much this critical mass of students marching shoulder into the statehouse as much as it was finding the people who saw the value in this and were willing to put their shoulder to the wheel a bit on it and help out in that capacity. When the going gets tough, keep in mind that you don’t need a huge group of people to get this done. You find your dedicated few and those are the people that can get this done.

Then I think you start to see the appreciation come out from corners you weren’t hearing from before. High school newspaper and yearbook advisers are busy people and in some cases you’re dealing with states where they’re somewhat fearful of sticking their neck out, so that’s something that’s totally understandable. That’s why people like newspaper editors and press associations can be really helpful because they’re the people who are frequently sticking their neck out on these kind of issues and at the same time can totally see the value in better protections for student journalists.

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Tagged: blog, Blogroll, Nevada, new voices, patrick file, q&a, recent-news

Court rules that MSU can’t sue ESPN for requesting open records

MICHIGAN — A Court of Claims judge threw out a lawsuit against ESPN, saying Michigan State University can’t sue reporters for requesting records under the Freedom of Information Act.

When a FOI request is denied, it often leads to legal disputes, but it’s usually the party requesting information who takes that step. That’s what makes MSU’s decision to sue ESPN for filing an open records request so unorthodox.

It started in February of this year when multiple MSU football players and a staff member were suspended due to investigations of sexual assault. ESPN reporter Paula Lavigne requested related police reports under Michigan’s freedom-of-information act, known as FOIA. The school denied that request.

Then MSU went a step further and in May sued to receive a declaratory judgment from the Court of Claims. The school claims it was stuck between ESPN’s request, and the police’s request to keep all information related to the investigation private, and wanted a court to decide which took priority.

“We typically would take those records, redact them appropriately per the FOIA statute and then release them,” MSU spokesman Jason Cody said in a previous conversation with the SPLC. “In this specific case, we have a media outlet that’s asking us to do that and we also have the chief law enforcement officer in the county…telling us that the release of any information, even in redacted form, could potentially threaten the case.”

Court of Claims judge Cynthia Diane Stephens ruled that FOIA’s language was specific in granting parties who are denied records the chance to appeal that decision in court, not the other way around. Therefore, the act could not be used to justify the record-holding party preemptively suing those requesting the records.

“There is no reciprocal provision in the act granting a public body the type of ‘race-to-the-courthouse’ cause of action for which MSU advocates in this case, nor does the act in any sense permit a public body to preemptively sue a requesting person under the act.”

After the ruling, Cody said, “Though the court ruled that we we did not have legal standing to go about getting that guidance in the way we did, there was a counterclaim filed by ESPN that the court is going to rule on which will give us that guidance.”

While “sue-the-requester” lawsuits are unusual, they’re not unique. The student newspapers at both the University of Kentucky and Western Kentucky University are defending themselves in court now against suits brought by their own institutions to block the release of public records. What makes these cases potentially worrisome to journalists is that the government agency is forcing cash-strapped news organizations into court in cases where the news organization may not have been prepared to spend money fighting for access. Public records laws normally put the journalist, not the agency, in the position of deciding which records are important enough to spend potentially tens of thousands of dollars suing over. When the agency initiates the lawsuit, the journalists have no choice but to put up a defense.

SPLC staff writer Danielle Dieterich can be reached by email or (202) 833-4614.

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Tagged: blog, Blogroll, ESPN, FOIA, Michigan, open-records, recent-news

University newspaper in New York crowdfunds to keep its independence

NEW YORK — The Torch, the award-winning student newspaper at St. John’s University in Queens, New York is using crowdfunding to pay off debts rather than give up its decades-long status as an independent publication.

Journalism as an industry (and print newspapers in particular) has been struggling for years to find a way to be financially successful in the digital age. The pressures are equally high for student newspapers that have to either rely on school funding and risk budget cuts and even censorship at the will of administrators, or remain independent and try to keep the doors open without funding from their schools.

The costs of running The Torch independently are relatively low — the staff of The Torch do not get paid for their work, and the space they work in is provided by St. John’s. But costs of printing, delivery, hosting a website and equipment like computers and cameras build up. For The Torch, it has resulted in $5,000 in debts. This limited the paper’s options going forward: either find a way to pay those debts themselves, or relinquish independent status by asking the university administration for funding.

They decided to crowdfund the money. The gofundme listing explains that, “over time, we’ve seen student news organizations crippled when their budgets are downsized or cut off by their administration or student government over stories they weren’t fond of — and while we wouldn’t expect that to happen at St. John’s, it’s better for us to maintain complete financial independence. “

But crowdfunding only goes so far, and the students at The Torch know it’s only a temporary solution, saying, “We don’t expect to sustain ourselves by crowdfunding, but we are eager to pay off our debts so that we can start fresh.”

So how will they prevent more debts from building up?

That process has already begun, according to Editor-in-Chief Suzanne Ciechalski. When ad revenue fell through two years ago, The Torch staff and their adviser began a subscription service and worked to rebuild their ad money by “building relationships” with advertisers. The paper also reduced the number of copies printed for each issue: they cut back to 500 — the lowest number their printer will accept. The hope is that this combination is enough to keep the paper afloat, assuming of course they can raise enough money to eliminate their debt.

“We don’t want to leave the new editorial board who will come in in April with this debt like we were left, Ciechalski said. “It’s just so limiting in terms of what we’re able to do.”

So far things seem hopeful. Seven days into their crowdfunding campaign, The Torch has already raised more than $3,000 of its $5,000 goal. The money has been donated by 59 people whom Ciechalski says are primarily friends, family and alumni of the paper, but also some unexpected figures.

“One person who donated said that their dad graduated from St. John’s in 1939 and then in 1941 with their master’s,” Ciechalski said. “It’s been overwhelming.”

In a follow up email, Ciechalski described tearing up from all the support and messages she’s received from people who care about the future of The Torch. “I think this support we've received really underscores just how important journalism still is to people, she said. “... Campus newspapers are the learning ground for so many young journalists, and I think we're seeing now, more than ever, just how important it is for us to learn the craft, and learn it well.”

The campaign will remain open until the end of September. If they exceed their goal, Ciechalski says they’ll save the money or use it to buy newer computers and software. If they don’t meet the $5,000 mark, they’ll have to reevaluate their options.

SPLC staff writer Danielle Dieterich can be reached by email or (202) 833-4614.

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Tagged: blog, Blogroll, crowdfunding, independent-student-paper, New York, recent-news, st johns university, Torch

Gay students in Missouri had their high school yearbook quotes censored by school

MISSOURI—For high school seniors, yearbooks mark a bittersweet Sharpie-scented end to their four years. For two openly gay Missouri seniors whose quotes were excluded from the yearbook, the keepsake was more bitter than sweet.

After recently graduating from Kearney High School, Joey Slivinski and Thomas Swartz opened their yearbooks to find blank spaces under their portraits, according to KCTV5. Both submitted witty quotes about their gay identities, only to find that the school scrubbed them from the pages.

“Of course I dress well. I didn’t spend all that time in the closet for nothing,” Slivinski’s original quote read.

“If Harry Potter taught us anything, it’s that no one should have to live in the closet,” said Swartz’s.

An apologetic statement from the KHS principal Dave Schwarzenbach and district superintendent Bill Nicely claimed this was done to try and “protect” their students by withholding quotes that may offend other students or groups. It was a move intended to “err on the side of caution.”

Though the statement said that the district works “diligently to help every student feel safe, supported, and included,” Swartz called this incident an act of “senseless censorship” on his personal Facebook page.

The students told KCTV that they plan to make stickers of their quotes for friends to insert into their yearbooks.

Tagged: blog, Blogroll, censorship, high school, Missouri, recent-news, yearbook-quotes

First Amendment ruling focuses the lens on photojournalists' rights -- again

Photojournalists have been on a hot winning streak before the federal courts lately, with two favorable rulings reinforcing the right to record police activity in public spaces. So there was a ripple of discontent when a regional appeals court in St. Louis handed down a constitutional clunker in the case of a citizen activist suing the City of Columbia, Missouri, for interfering with his photography. 

But legally, there is less to the case of Matthew Stephen Akins than initially feared, and the ruling does no harm to the unbroken consensus that journalists may freely photograph or videotape law enforcement officers conducting official business.

On July 25, the Eighth Circuit U.S. Court of Appeals summarily upheld, without discussion, an August 2016 ruling from the Western District of Missouri dismissing Akins' First Amendment claims.

Akins sued the City of Columbia, its police department and individual law enforcement officials in May 2015 for what he alleged was a pattern of retaliatory arrests, harassment and confiscation of property motivated by his police watchdog activism. U.S. District Judge Nanette K. Laughrey threw out his constitutional claims, ruling in part that a citizen "has no constitutional right to videotape any public proceedings he wishes to." 

The appeals court did not discuss the substance of the lower-court ruling, but simply found no legal basis to reverse it. 

The Akins ruling does nothing to disturb, or contradict, the unbroken string of federal appeals-court rulings vindicating the constitutional right of anyone -- citizens as well as journalists -- to capture video, images and audio of law enforcement officers when they conduct official business in places visible to the public.

Most recently, federal appeals courts in Philadelphia (Fields v. City of Philadelphia) and in New Orleans (Turner v. Driver) upheld the right to bring constitutional claims against police agencies that interfere with audio or video recording of their officers. That makes four out of 12 regional appellate courts to affirm that recording police activity is constitutionally protected; none has squarely ruled otherwise. 

Although Akins' lawyers were quoted describing his case as a deviation from this line of precedent (a position that would help their cause in obtaining U.S. Supreme Court review), there are decisive factual differences. 

According to the district court ruling, Akins was prevented from filming a member of the public, not a police officer, in the Police Department lobby (specifically, a citizen activist who was at the department to file a complaint). The First Amendment right to record law enforcement activity rests on the enormous power that police exercise and the need to monitor how they use it. There is a less compelling argument for the ability to film the complaint intake process inside of the police headquarters, and a greater concern in that space (unlike on a street corner) for both the police department's ability to function and the public's willingness to use the complaint process. (Imagine the potential for intimidation if the union defending police officers insisted on a right to film aggrieved citizens as they file complaints.)

For these reasons, the Eighth Circuit's perfunctory ruling does not represent a retreat from precedent elsewhere. Rather, it simply reiterates longstanding precedent that there is no generalized First Amendment right to be present where news is happening.

Nevertheless, the Akins ruling is discouraging because, once the courts began recognizing a First Amendment right to record police, it at least opened the door to establishing a broader right of access to record other official proceedings. The Eighth Circuit has pulled that door shut, though in a more sympathetic future case with a working journalist as the plaintiff, perhaps the judges might be persuaded to reopen it. The First Amendment should be understood to protect not just the right to distribute news but the right to gather it, without which the right to publish has diminished value.

Tagged: Akins v. City of Columbia, First Amendment, news, photojournalism, recent-news

From the SPLC Legal Network: New Virginia ruling reemphasizes that the safest policy for schools is "hands-off" of social media pages

Students planning to take gripes about their school to social media forums just received some reinforcement from a federal district court in Virginia. 

Judge James C. Cacheris ruled that blocking an individual from posting political criticism in an online social media forum violates the poster’s First Amendment rights.  

In the case, Phyllis J. Randall, a local politician holding the position of chairwoman for the Loudon County Board of Supervisors, blocked an individual from posting on a Facebook page because she disliked the content of his post. The “Chair Phyllis J. Randall” Facebook page stated that it was meant to be a forum for communication between Randall and her constituents. Randall became upset when Brian Davison questioned the transparency of public officials in Loudon County on the Facebook page, and in response she blocked him from posting to the page. 

Twelve hours later, Randall changed her mind and unblocked Davison. Even though the obstruction was fleeting, Davison claimed that Randall’s act of removing his access to the Facebook page was a violation of his First Amendment rights, because the Facebook page was a forum held open for the public to express opinions about the performance of the county board. Judge Cacheris agreed with Davison.

The key to the ruling was that, in the court's view,  Randall "engaged in viewpoint discrimination by banning Plaintiff from her Facebook Page. Viewpoint discrimination is prohibited in all forums.” 

Under the First Amendment, the government is forbidden from engaging in “viewpoint discrimination,” including using its control over access to government property to allow only speakers with a certain view to be heard. In the Virginia case, the court found that Randall, acting in her capacity as a government official, removed Davison’s post and blocked him from speaking further because he expressed the view that the Loudon County Board of Supervisors was doing a bad job. 

Even though the forum was Facebook, a social media account, rather than a traditional forum, Randall had engaged in action that fell squarely into the classic example of viewpoint discrimination. It did not matter to the court either that the "property" was virtual -- and indeed, that the government may not "own" a Facebook account in the same way it "owns" the lobby of City Hall or the steps of the courthouse -- or that Davison had plenty of alternative places to make his criticisms heard.

Many news organizations have focused on what this ruling might mean for a lawsuit brought in New York federal court by the Knight First Amendment Institute against President Donald Trump, claiming that Trump violates individuals' First Amendment rights when he blocks them from access to his Twitter account. But the case holds special meaning for students fighting against online censorship from school administration as well.

Schools and student organizations often maintain social media pages. Students sometimes use these social media pages as forums to criticize elements of the school or school administration that should be improved. Unsurprisingly, school administrators are not always thrilled with the criticism they face in these social media posts. In some situations, school administrators have taken down the critical posts or prevented students from posting to these sites.The Virginia Facebook ruling gives us perspective that such actions represent viewpoint discrimination and can open an offending school up to a constitutional claim.

The Virginia ruling reminds us that whether speech is printed on paper or posted to a Facebook page doesn’t matter; digital speech receives full constitutional protection. 

Gwenn Barney is an associate in White and Williams’s Corporate Law practice and a member of the SPLC's Attorney Referral Network. In law school, Gwenn researched issues related to student rights as an intern with the Student Press Law Center and studied cyber law while a visiting student at The University of Hong Kong. She was a student journalist at Taylor Allderdice High School's The Foreword and the University of Pittsburgh's The Pitt News

Tagged: news, recent-news

School bus videos are public records, Pennsylvania court rules

Security footage filmed on school buses is a public record, a Pennsylvania court ruled this week, reaffirming the state’s stance on the relationship between its open records laws and the Family Educational Rights and Privacy Act.

In February 2016, a reporter with the local Fox affiliate requested that the Central Dauphin School District provide her with a copy of security video captured by a school bus camera system. The footage showed an alleged altercation between a 17-year-old student and the wife of Central Dauphin East High School’s principal. At the time, the school denied the reporter’s request, saying that FERPA exempted the video from the state’s Right-to-Know Law.

The state’s Office of Open Records, however, ordered the district to release the video, noting that “just because a record involves a student does not automatically invoke the confidentiality provisions” of FERPA. “While this video purportedly depicts the individual student, there is no evidence that this video is part of the student's permanent academic file,” Charles Rees Brown, the office’s chief counsel, wrote in the opinion.

The school had also argued that the video was exempt because it was related to a noncriminal investigation. Brown dismissed this argument as well, writing that there was “no evidence that the video exists for reasons other than to document the behavior of students and others aboard school buses.”

This office’s 2016 ruling was a reversal of the state's earlier position, which held that school bus videos were indeed protected by FERPA. In 2011, the office sided with the Bangor Area School District in a similar case, blocking a man from obtaining videos related to bullying on his daughter’s bus. Erik Arneson, executive director of Pennsylvania’s Office of Open Records, told the Morning Call last year that the change was the result of the office taking “a deeper look” at the state’s Right-to-Know Law and FERPA.

The Central Dauphin School District disagreed with the ruling and appealed the decision in June 2016. On Tuesday, the Dauphin County Court ruled against the school, largely agreeing with the Office of Open Records’ interpretation.

In his opinion, Judge William Tully reiterated the office’s explanation, as well as clarifying that the school bus security footage is — if not routinely deleted — maintained by the state’s Department of Transportation, further differentiating the video from educational records, which would be typically maintained by an educational institution.

Student faces must be blurred or redacted, the court said, but the footage is otherwise not protected and can be released.

“This court finds that the district has failed to meet its burden in proving by a preponderance of evidence that school bus video is exempt from disclosure under FERPA,” Tully wrote. 

Tagged: FERPA, recent-news

Can Hugh redact personal phone numbers from a state record? It's a close call.

Next to Houston Nutt, whose lawsuit helped topple Ole Miss football coach Hugh Freeze, the next-happiest person to see Freeze fall must be Kwame Kilpatrick, who's now only the second-most-famous person to be dethroned by public records. 

Just as Kilpatrick lost the Detroit mayor's office, and ended up in prison, after an open-records lawsuit disclosed embarrassing text messages about personal indiscretions, so too was Freeze sidelined from the sidelines. The Rebels' head coach was forced from his job Thursday after the University of Mississippi discovered a "pattern of personal misconduct" documented by records of his state-issued cellphone calls.

But is the public entitled to more disclosure than the university has offered? There's a good chance the answer is "yes."

Hugh Freeze (by jeremymnabors, used under CC license)

Nutt, who preceded Freeze as head coach, obtained the billing records for Freeze's cellphone as part of research for a defamation suit he's pursuing. The university allowed Freeze to review the records and redact calls he deemed personal, which (though an obvious invitation for people to make self-serving redaction decisions that are almost impossible to challenge) is routine practice when individuals' records are requested under state freedom-of-information laws. 

What may not be routine practice is withholding portions of public records on the grounds that their contents are, quote, "personal."

Interestingly, Mississippi law contemplates the reverse of Freeze's situation, where the entire document qualifies as exempt but some of its content can be harmlessly produced:

If any public record which is held to be exempt from disclosure pursuant to this chapter contains material which is not exempt pursuant to this chapter, the public body shall separate the exempt material and make the nonexempt material available for examination or copying, or both, as provided for in this chapter.

The billing records for a university-owned cellphone are not "exempt from disclosure" -- they are classic public records that any requester is entitled to inspect and copy. 

Nothing in the law explicitly authorizes what the university did -- selectively removing material categorized as exempt from otherwise-public records. But it's widely understood that open-records laws are not "all-or-nothing," and that the presence of a small amount of nonpublic material in a document does not entitle an agency to withhold the entire document. So even where the authority to make selective redactions doesn't appear in the statute, the courts have created that mechanism to avoid the absurd result that one confidential sentence in a 25-page document could render the entire document inaccessible. 

The Mississippi attorney general's office has interpreted the Public Records Act to allow agencies to excise exempt information from otherwise-public records before producing them. In a 2009 opinion letter, Attorney General Jim Hood advised that home addresses and phone numbers can be withheld from police reports if they fit within a statutory exemption, such as the exemption for identities of confidential police informants. 

So the question is whether the Public Records Act exempts "personal" information. If not, then Freeze's redactions went beyond what the law allows, and the redacted entries should be produced.

There is no statutory exemption for "personal information" in Mississippi law. The statute contains some narrowly targeted exclusions that allow for withholding especially sensitive information, such as Social Security numbers, but nothing that categorically places "personal" information off-limits.

The university's best (indeed, only) argument for categorizing personal calls as exempt from disclosure will be to argue that, by definition, a record of a non-business phone call does not meet the statutory definition of "public record" in the first place.

Mississippi law defines a public record as any document that is "used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body."

By that broad definition, it is difficult to argue that records of personal phone calls on state devices are not public records. Although the phone call itself was not an official business call, that's not what the law says. The law says any record that the state (1) keeps as part of its official functions or (2) is required to maintain is open to public inspection. The records reflecting a state employee's cellphone use -- for any purpose -- very likely qualify as records that an agency retains, or is required to retain, for official use. 

So there is a strong basis to argue for access to the redacted call entries, which might more fully enlighten the public about why Freeze is no longer drawing his $4.7 million salary.

In 2010, the U.S. Supreme Court considered, but did not squarely decide, whether a public employee has a constitutionally recognized expectation of privacy in text messages sent on a government-issued device. In that case, City of Ontario v. Quon, the Court found that a police department acted reasonably in examining messages sent by a police officer on a city-owned pager to see why he was exceeding the monthly usage cap and incurring overage fees.   

The university would be on uncertain legal footing in insisting that Mississippi law allows for withholding documentation of personal usage of a state cellphone. We may yet see the full picture of what "personal misconduct" impelled the university to cut ties with its fifth-year coach.

Photo of Hugh Freeze by jeremymnabors, used under Creative Commons Attribution-Share Alike 3.0 Unported license.

Tagged: Hugh Freeze, news, Ole Miss, public records, recent-news, University of Mississippi

Iowa State can not censor marijuana legalization shirts, Eight Circuit reaffirms

Students at Iowa State University can produce and wear T-shirts with the university logo and a pot leaf, the U.S. Court of Appeals for the Eighth Circuit ruled.

In a decision issued by a three-judge panel last month, Iowa State was found to have violated its students’ First Amendment rights when it denied the campus chapter of the National Organization for the Reform of Marijuana Laws permission to use the university’s trademarked name and logos. The ruling reaffirms an earlier opinion handed down by the Eight Circuit.

“We are gratified the Eighth Circuit reaffirmed its earlier holding that the First Amendment does not permit state university officials to condition benefits based on the viewpoint of student groups,” attorney Robert Corn-Revere, who represents the students, said in a statement. “We look forward to bringing this case to a close, or, if ISU chooses to appeal, litigating the matter to a final conclusion.”

The controversy began when the NORML chapter at Iowa State printed T-shirts that included the phrase “NORML ISU” along with the university’s mascot. On the shirt's back, the design read “Freedom is NORML at ISU” and featured an image of a pot leaf. Though the university initially approved the design, it later blocked the students from printing more T-shirts, claiming the design violated the school’s trademark policy.

The students sued in 2014, and the lawsuit became part of the Foundation of Individual Rights in Education's Stand Up For Speech Litigation Project. In early 2016, a U.S. district judge ruled in favor of the students, stating that administrators violated the students’ free speech rights. The university appealed, and the Student Press Law Center wrote a friend-of-the-court brief urging the appeals court to affirm the district judge’s ruling.

In February 2017, the appeals court ruled unanimously, agreeing with the district judge.

The university administrators asked the appeals court to rehear the case, and when it did, the panel reaffirmed their earlier decision. This time, however, it was a 2-1 vote, with the one judge ruling that the university officials should be protected by immunity.

“It was a really decisive opinion,” said Marieke Tuthill Beck-Coon, director of litigation at FIRE. “It made very, very clear that when a university offers a benefit for all of its students to use -- as it did here with its trademark policy -- they can’t take that benefit away because a group’s message isn’t politically expedient or is controversial or political or whatnot.”

Now, the university has submitted a motion for rehearing en banc, meaning all of the Eighth Circuit court judges would hear the case, not just the standard three. The motion is currently pending. If the Eighth Circuit decides not to rehear the case, the university then has the option to go to the Supreme Court.

This recent ruling may affect another T-shirt controversy at University of Missouri-Columbia, which is also in the Eighth Circuit. A similar situation, the NORML chapter at MU wanted to print T-shirts with MU’s logo along with a pot leaf, but the request was denied. Though the university allowed its name to be used as part of the organization name (NORML at MU), it refused the chapter’s request because MU’s licensing policy does not allow the use of drug- or alcohol-related images.

“I can’t say with any certainty how [the ruling] will affect the Mizzou case because the facts are, of course, different between Mizzou and the ISU case,” Beck-Coon said. However, she said if there are facts in the Mizzou case that show the university was discriminating against NORML over the basis of the group’s message, then the ISU ruling would be helpful in resolving that lawsuit.

Tagged: recent-news, school censorship, student organization