What childcare facility records are state inspectors legally entitled to examine during their inspections?

That is the question that currently has the Childcare Association of Louisiana (CCAL) and the Louisiana Department of Education (LDOE) at loggerheads.

LDOE maintains it has a right under law to examine all records of childcare centers. CCAL counters that LDOE is guilty of bureaucratic overreach.

The dispute has reached such a point of contention that CCAL has asked Louisiana Attorney General Jeff Landry for a legal opinion on whether or not childcare centers must surrender video footage and such things as financial, personnel, tax, private emails, and medical information to state inspectors on demand.

The issue promises to be an interesting one for Landry to address.

State inspectors have invoked Louisiana R.S. 44.1 as the applicable law that gives them license to demand—and receive—all video surveillance data, as well as all other personal records of childcare centers.

The only problem is R.S. 44.1 pertains to records of public agencies and childcare centers are, well, ….private businesses. And if public agencies can drag their feet in compliance as they have done—and are continuing to do—why should a private entity not even covered by that statute be threatened with penalties for non-compliance?

One might think that representatives of LDOE, who are presumed to be mighty smart, could discern the subtle difference between public and private. Here is the wording of R.S. 44.1:

General definitions:

1. (1) As used in this Chapter, the phrase “public body” means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.

Childcare facilities wouldn’t appear to qualify as public bodies as defined by R.S. 44.1.

But that hasn’t stopped LDOE inspectors, perhaps taking their cue from the State Dental Board or the Auctioneer Licensing Board, from flexing their muscles.

Recently, inspectors with the childcare licensing division have been coming into privately-owned centers and demanding that if security camera systems are utilized, inspectors should be allowed access to view footage of recordings upon demand.

“Cameras are not a requirement in child care centers, and we feel a host of privacy issues come into play by allowing them such access.” Says Jonathan Pearce of Lafayette, president of CCAL.

“My center received a deficiency write-up in January of this year because I did not allow a specialist to view my private recordings when she asked for them. The violation was given to us because I did not allow her access to my center’s records,” Pearce said, adding that inspectors also have forced owners to disclose email correspondence from owners’ private email accounts on occasions when inspectors investigate individual complaints.

He said inspectors are using regulations contained in Bulletin 137, which says an early learning center “shall allow the Licensing Division staff access to the center, the children, and all files and records at any time during any hours of operation or any time a child is present.”

“The way that is written,” Pearce said, “I would be forced to provide a copy of my tax returns to a specialist if she demanded it.”

He said that rather than remove the deficiency he was issued, the Board of Elementary and Secondary Education (BESE) Academic Goals and Instructional Improvement Committee met on Aug. 15 of this year and approved amended Bulletin 137 to read “…all files, records and recordings upon request…” (emphasis added)

Pearce said that State Superintendent of Education John White told BESE members that the insertion of “and recordings upon request” was simply a clarification of the current regulation which gives LDOE authority to access digital records.

“The Child Care Association of Louisiana, said CCAL lobbyist Cindy Bishop, “strongly believes that the Louisiana Department of Education does not have the statutory authority to request recordings from video cameras installed in early learning centers. CCAL believes that this is a violation of their members’ privacy rights.  Below is the rationale for our three arguments:

• The Department of Education should absolutely have immediate access to the center, grounds, staff members for questioning, and any records that are a requirement of the department regarding the health & safety of children. However, access to recordings such as camera systems is not a requirement of the department and those centers who choose to have them installed for the purpose of security should not be forced access of viewing if requested by a specialist. Without some type of subpoena or warrant from a commissioned agent would be an infringement of our rights.
• The public records act applies to public bodies, agencies and entities. Licensed childcare centers are private entities, or businesses and do not fall under the purview of the Louisiana Public Records Act.
• Secondly, because the cameras do not provide a 360-degree panoramic view of a classroom, the recordings do not show the activities in an entire classroom and thereby, can be misleading. In our view, it is negligent to judge daily functions in the classroom with such a subjective view.
• The Childcare Association of Louisiana has been made aware of several instances where an LDOE licensing inspector cited a childcare center for lack of supervision of children based on footage from a video recording. Because there is no audio on many of our childcare centers video recordings and because the surveillance is not 360 degrees, licensed facilities who opt to install video cameras are subject to misinterpretations of their cameras’ footage.
• If a center chooses to utilize security cameras, it is to protect the owner of the childcare center from liability. There are instances when a parent or an employee, or a former employee makes an accusatory statement about something that happened or did not happen in a childcare center. Having a camera allows the owner of an early learning center to review the video footage to ascertain the situation with greater clarity. It should not be used as a weapon against them giving the department a tool to use to place sanctions against the owner of that system.

“CCAL also feels that the wording that would allow licensing access to all records opens up an area that would force us to provide records unnecessary to the scope of practice of the licensing specialist,” Bishop said. “All records in the center could include financial records of a private business, tax documents, personal records that are on the premises of the owner’s property, and medical records protected by federal HIPPA (Health Insurance Portability and Accountability Act) laws.

“We believe that this is a privacy issue and that the recordings and records not required by LDOE for the health and safety regulations listed in Bulletin 137 are the exclusive property of the owner of the early learning center,” Bishop said.