Pennsylvania Open Records Office Forms

The following announcement appeared in Saturday's Pennsylvania Bulletin. 

Under section 505 of the Right-to-Know Law (65 P. S. § 67.505), the Office of Open Records must create and make available a Uniform Request Form that can be used when making request for records. This form is available on our web site at, click on the FORMS link.  Local and Commonwealth agencies are permitted to create and use their own forms, but should be advised that the law requires that they must accept a request submitted on the Office of Open Records Request Form.

Click here for the "forms" page.

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

I am not sure what Professor Fox thinks of the Chancellor's efforts or even my observations about the ability to objectively measure teacher performance. I do note that his same comment appeared on a couple of other blogs, see here and here, and a similar comment appeared here, which may explain why his comment on this Blog does not speak to the issue of objective performance review.


We know from special education that a teacher’s performance can be assessed both directly (compliance with legal compliance such as time lines; educational-legal compliance such as IEPs with measurable goals and proper present levels of educational performance) and indirectly through student outcome (based on individual student performance measured via objective and measurable goals (and I mean rigorously and scientifically measurable, such as increases in reading words correct per minute, and the like), thus accounting for both high- and low-level potential students).  I still believe this sort of assessment can be proper and fair in a merit-pay performance rating system.


I believe we can agree that pay should not be based on bias and favoritism (which are too invasive in rater-ratee subjective assessments) or even the good fortune of living among a bunch of high-fliers (which is what standardized assessments reveal). I would be interested in knowing Professor Fox’s views on transferring lessons learned from special education progress monitoring and compliance demands to objective assessment of teacher performance.


My commentary on the confederate flag  quoted one of the students as saying “the confederate flag ‘had nothing to do with slavery’” and a school spokesman said “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .”  I also pointed out that the confederate flag “represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for.”  Lynn takes issue with this. 


The comment says “The civil war was not about slavery! Have you read the Emancipation Proclamation?”  Well, yes.  Although my entry did not go into the great Proclamation, you can read it here.   The National Archieves described the impact of the document: “Although the Emancipation Proclamation did not immediately free a single slave, it fundamentally transformed the character of the war.  After January 1, 1863, every advance of federal troops expanded the domain of freedom. . . .   The Emancipation Proclamation confirmed their [slaves’] insistence that the war for the Union must become a war for freedom.  It added moral force to the Union cause and strengthened the Union both militarily and politically.  As a milestone along the road to slavery's final destruction, the Emancipation Proclamation has assumed a place among the great documents of human freedom.” 


Lynn is not quite correct in writing “It only freed the slaves in the states that left the Union.” It actually gave legal freedom only to those held in bondage in states and areas that were still “in rebellion against the United States” (Lincoln’s own words), even after Lincoln gave 100 days advanced warning (it is actually Lincoln’s reiteration of the previous warning proclamation that Lynn quotes in the comment).


Moreover, Lincoln was constrained by Constitutional process. It would be ironic if Lincoln were to have disregarded his sworn duty to uphold and defend the Constitution, and to engage in a war to save the Union, but still just disregard our founding document by freeing slaves everywhere. One might note that cutting the chain of bondage required the 13th Amendment.  Lincoln could only free those living in the identified rebellious territories, where as Commander-in-Chief he had the free reign to act.  I believe Lincoln himself addresses this troublesome little point of constitutional probity:


“Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, . . . order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, . . . And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free. . . .”

I fail to see nothing but fact, rather than revision and PC, in what the confederate flag means, at least to me.  After all, if the civil war was not about a “state’s right” to hold another human in bondage, then what was it about?  Anyone studying the civil war and the period leading up to it understands that this was the fundamental friction between the states.  But then even Lynn’s comment does not dispute the meaning and symbolism of the flag born out of bondage. 

So I still ask, why couldn’t those school kids just waive the American Flag instead?

Now I come to Craig’s question about college student discipline: “If the courts see the due process between the student contract and the student [as] a private matter then why is an expelled student required to disclose the incident on a college application[?]”  Because, generally, the courts do not address both questions. 

The first question confronted is what does the contract (the student handbook) require of both the college and the student; and did both parties adhere to the contract (bear in mind that each state’s laws likely differ about how they view the relationship; the Blog entry addresses a Pennsylvania case)? The second question, about disclosure, is typically not addressed unless the first question is answered in favor of the student.  If the college breached the contract, then part of the relief would be to undo the harm. Typically, that will include removing disciplinary references from the student’s record.  If this is done, disclosure is a non-issue.  If the student loses, however, consequences follow.

Another reason is that the second question is addressed between different parties: the student of course, is the same, but the college is different. That different college is free to inquire into any legally appropriate area. Prior expulsions is not a prohibited are of inquiry.  

And finally, Nagla’s comment: “I totally agree with your observation, honest and open communication is essential to resolving problems.” I think that’s a good way to end.

A Pennsylvania court's view of HIPAA, FERPA, and student records

The Pennsylvania Superior Court considered, and rejected, the notion that two federal privacy statutes create privileges against disclosing student records during the course of litigation discovery. But a state law, however, might bar production of such records.

The case involved a former student’s discovery demands in a case against a private special school. Student alleged he suffered sexual abuse and sought records relating to other similar possible past claims against the school. The school opposed producing any such records citing various statutory confidentiality protections against disclosing records involving other students.

The court found that the Health Insurance Portability and Accountability Act of 1996, known as “HIPAA,” and the Federal Educational Rights and Privacy Act, known as “FERPA,”  set forth the parameters by which protected student records can be disclosed and that, generally, disclosure pursuant to court order is an exception to the non-disclosure rule. In this respect, the state court decision comports with the statutes.

More interesting is how the court viewed the argument about a privilege against litigation disclosure based on state law. The Pennsylvania Mental Health Procedures Act, known as the “MHPA,” is seen as creating a privilege, with the only exception being legal proceedings permitted under the MHPA. The court did not decide the ultimate issue but instead sent the case back to the trial court to consider with the school was a “facility” under the MHPA and whether the MHPA actually applied. 

The case is a good reminder that many times state laws can offer more protections (or obstacles depending on your position) than federal laws. 

Proposed changes to FERPA regulations

On March 24, 2008 the U.S. Department of Education published proposed changes to the Family Educational Rights and Privacy Act (known as FERPA) regulations.  The changes are needed because of various statutory acts like the USA Patriot Act, two U.S. Supreme court cases, technology changes, and events like the Virginia Tech tragedy. The Department seeks comment and input on the proposal.

The proposed regulations offer definitional changes (clarifying that cyber-students “attend” a school; that social security numbers, student ID numbers, and unique electronic identifiers are not disclosable directory information, and more). Another proposal would permit a school receiving a record, such as a transcript to provide the record to the creating institution in order to verify the record as accurate and not falsified. “Personally identifiable information” is also changed to include information that, alone or in conjunction with other information, can lead to private student information (such as mother’s maiden name and information). 

Of particular interest in the higher education area, the proposal addresses concerns raised in the wake of the Virginia Tech tragedy and attempts to provide better guidance and assurance on disclosing information in health and safety situations. For students 18 and over, the proposal clarifies certain circumstances in which information can be disclosed to parents without consent, for example: when the student is a federal tax dependent of the parents; when necessary for health and safety; and when a student under age 21 violates substance abuse policies. 

The proposal also clarifies the means by which outside parties, such as contractors, may receive records without prior consent. Other matters address disclosure of “de-identified” information, verifying the identity of the person requesting records, among other items.

The Department will receive comments up to May 8, 2008. The link information explains how to submit comments.