Louisiana’s education chief asks courts to block public records requests, claims release of data may violate student privacy rights _lowres

Advocate staff photo by TRAVIS SPRADLING -- Louisiana Education Superintendent John White speaks Friday, April 15, 2016 at Rougon Elementary School at a gathering to announce the school's French immersion Program, which will open there in August of 2016 to students in kindergarten and first grade. The school is collaborating with the Council for the Development of French in Louisiana (CODOFIL) on the program

Education activists James Finney and Mike Deshotels have proven to be thorns in the side of state Education Superintendent John White and the Louisiana Department of Education, filing a plethora of public records requests the past several years and even suing White and the department in their quests for records relating to standardized testing data.

Now, White is turning the tables on Finney, a math instructor at a local technical college, and Deshotels, a former educator and past executive director of the Louisiana Association of Educators.

White filed two petitions for declaratory relief in late April — one against Finney, of Baton Rouge, and the other against Finney and Deshotels, of Zachary — in 19th Judicial District Court.

Finney, who acknowledges he’s “vehemently anti-voucher” and not a big fan of White’s, calls the superintendent’s legal actions “groundless, unnecessary and against the public interest.”

White, however, says he is simply trying to resolve a conflict between the state’s public records law and a federal law that protects students’ privacy and safety. White said he wants to follow both laws.

“The Department of Education has two laws telling it to do two different things,” he said Friday.

White’s petition against Finney, which has been assigned to state District Judge Tim Kelley, asks the judge to rule that the Education Department is not required to produce records for the requests complained of in the petition because the requests are “unduly burdensome and … exempt from public records law.”

Finney, the petition says, has filed no less than 50 public records requests with the department since September.

The petition against Finney and Deshotels, assigned to state District Judge Janice Clark, asks the judge to rule that the Education Department’s suppression of data relating to economically disadvantaged and English proficiency students is in compliance with state and federal law and does not violate Louisiana’s Public Records Act.

Some of the public records requests seek data that include the exact number of students in a given school and grade level, along with specific characteristics of those students, the department says.

That kind of information may make it possible for someone demanding information from the state to identify a specific student, violating the privacy of that child and putting the child’s safety at risk, the department adds.

Education Department spokesman Barry Landry said Thursday that White and the department are merely seeking guidance from the court.

“The Department of Education has received public records requests that do not comply with federal privacy laws and potentially reveal the personally identifiable information of students in Louisiana schools,” Landry said in an email. “The department is simply asking a judge if these requests are something under the law that must be filled, putting the identity of our children in jeopardy.”

Finney, who says his sole concern is transparency in Louisiana’s K-12 testing and accountability system, rejects the department’s contention.

“I have no interest in personally identifiable information about any child,” he insists. “I don’t want any individual’s test scores.”

In an April 21 letter to White, U.S. Department of Education chief privacy officer Kathleen Styles notes that the federal Family Educational Rights and Privacy Act requires prior written consent from a parent or eligible student before disclosing personally identifiable information from student education records, unless an exception applies.

The act’s confidentiality standard prohibits the release of information that would allow a reasonable person in the school community to identify an individual student “with reasonable certainty,” her letter says.

Styles’ letter was in response to one from White expressing concern about protecting student privacy.

Finney, in a May 31 email to the state Board of Elementary and Secondary Education, said some of the information he seeks includes voucher programs’ exact enrollments and costs, and demographics of voucher students; and charter schools’ enrollments, charters and leases.

“I urge you as a body to ask Mr. White to defend his position regarding data secrecy and his preference for litigation over useful dialogue,” Finney stated to BESE’s members.

“Is the department in service to the public, or to test creators, charter networks and private schools?”

Deshotels has filed four public records lawsuits against White and the department since 2013. Two of the suits were settled, with Deshotels receiving some or all of the Recovery School District data he sought. In the other two suits, judges ruled in his favor, ordering the department to provide the requested documents and to pay his court costs and legal fees.

In the most recent court judgment, state District Judge Todd Hernandez in December ordered White and the Education Department to produce a copy of the October report for all Louisiana public schools “with the actual total number of students enrolled in each grade including the various categories of ethnic groups and free or reduced lunch and other designations in each public school in Louisiana.”

The judge specifically ordered White and the department to produce the total numbers “and not the rounded off or suppressed enrollment numbers.”

Finney, in his email to BESE, alleges White now is trying to reverse the favorable court rulings Deshotels received in Baton Rouge state court.

“He seeks to use Mr. Deshotels and I as pawns … to establish a data-suppression policy that was already soundly rejected at court,” Finney charged.

Deshotels’ attorney, J. Arthur Smith III, alleged in a May 18 court filing that White and the education department are trying to relitigate issues that Hernandez already decided.

“The claims of Mr. White and the Louisiana Education Department are precluded and frivolous and are being asserted in order to chill Mr. Deshotels’ rights to access the court to assert Public Records Law claims,” Smith wrote.

Hernandez, in his Dec. 11 ruling, also ordered the department to pay Deshotels’ nearly $9,300 in attorneys fees and court costs, and he ordered White and the department to pay penalties of $100 a day from February 2015 — when Deshotels made the public records request — until the documents are produced.

Deshotels states in a recent email to a BESE member that most of the records were turned over March 31, but the state Education Department continued to suppress data for two classifications of students, citing the U.S. Department of Education letter it received. The state agency has paid Deshotels’ lawyer fees and court costs, he indicated, but is appealing the penalty portion of Hernandez’s order.