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Need help getting public records from state agencies? Don’t ask Attorney General Buddy Caldwell’s office for assistance

February 22, 2013 by tomaswell

The Louisiana Attorney General’s office has more than 80 legal opinions posted online that address the state’s open meetings and public records laws but don’t expect James “Buddy” Caldwell’s office to assist if you run up against resistance from a state agency like, oh say, the Louisiana Department of Education when seeking public records.

When LouisianaVoice recently encountered characteristic foot-dragging by State Education Superintendent in complying with our request for records pertaining to the department’s connections to Bill Gates’ Shared Learning Collaborative and Wireless Generation, a subsidiary of Rupert Murdoch’s News Corp., we asked for a little help from the attorney general’s office.

That help was not forthcoming so we had to go to our fall back plan—our legal counsel, J. Arthur Smith who loves to take on the bureaucracy.

Instead, we received a telephone call from an assistant attorney general somewhere deep within the bowels of the Livingston Building at 1885 North Third Street in Baton Rouge.

The assistant AG was polite enough as she explained that it was not the function of the attorney general’s office to assist the public in obtaining public records from recalcitrant state agencies.

“But, but, you do help when people are attempting to obtain access to public meetings,” we sputtered in disbelief.

“Yes,” she said, “but we are not involved in disputes over public records.”

“Yet you will get involved in enforcing open meeting laws?”

“Yes, that’s different.”

“Wait. What? Different?”

“Yes.”

“But I thought the attorney general’s office would assist Louisiana citizens gain access to public records. Isn’t that the law?

“Where does it say that? We assist with public meetings.”

“You differentiate between public records and public meetings?”

“Yes. We will help with public meetings but we don’t involve ourselves with public records.”

“What’s the difference?”

“There is a difference.”

“What is it?”

“One issue is public meetings while the other is public records.”

Such is the surreal world one encounters when attempting to navigate the bureaucratic red tape of state government.

Yet, when one does a cursory internet search, it is easy enough to find opinion after opinion that addresses the very issue in question—like the following excerpts from Louisiana Attorney General opinions:

• The Department of Insurance must comply with a public records request made pursuant to LA. R.S. 44.1, et seq.

• Square footage obtained by the assessor in the performance of his or her constitutional and statutorily designated duties falls within the definition of a public record provided by the Public Records Act…

• The Slidell Memorial Hospital Foundation is a quasi-public body, subject to the open meetings laws, public records laws…

• Hand-held scanners may be used in the inspection of public records (we threw this one in because Gov. Bobby Jindal’s office refused us the opportunity several months back to use our hand-held scanner to inspect public records.)

• The nominating committee for the Southeast Louisiana Flood Protection Authority is subject to the state’s “open meeting” and “public records” laws.

• When employees conduct official business through electronic communications, it becomes part of the public record which an individual may view…

• East Baton Rouge firefighters’ timesheets are a matter of public record…

And so on. You get our drift.

So, while no help can be anticipated from within the Louisiana Department of Justice (because, in the words of the late Richard Pryor, it’s “just US,” or in this case, “just them”), we will nevertheless plod along in our attempt to keep our readership informed—even to the point of employing the considerable persuasive legal talents of J. Arthur Smith who loves his job almost as much as we love ours.

Posted in Attorney General, Computers, Education, Governor's Office, Public Records, State Agencies, Transparency | 15 Comments »

Notable Quotables (in their own words)

February 22, 2013 by tomaswell

“I have prepared a bill calling for a constitutional amendment making the Louisiana Superintendent of Education elected and not appointed. It will be difficult to pass, but the people should decide who their superintendent is—not the Governor.”

—State Sen. Bob Kostelka (R-Monroe), in an email Thursday to LouisianaVoice as a result of LouisianaVoice story about plan to provide personal student information to a computer bank controlled by News Corp., owned by Rupert Murdoch.

Posted in ALEC, American Legislative Exchange Council, BESE, Contract, Contracts, Education, Governor's Office, House, Senate, Legislature, Legislators, Notable Quotables, OGB, Office of Group Benefits, Privatization, Public Records, Teague | 6 Comments »

DOE computergate pushback: state senator introducing bill to again make Superintendent of Education office elective

February 22, 2013 by tomaswell

It’s highly improbable but there is an ever-so-remote possibility that State Superintendent of Education John White could find his job in jeopardy.

Whether he does or not, there is a much greater chance that State Sen. Bob Kostelka (R-Monroe) could find himself removed from his chairmanship of the Senate Judiciary C Committee and/or removed from three other committees on which he now serves.

That’s because Kostelka intimated on Thursday that he intends to introduce a bill in the upcoming legislative session calling for a constitutional amendment making the state superintendent of education position elective instead of appointive.

The office was previously elective until 1987 when it was changed to appointive but now Kostelka wants to change it back.

His announcement came on the heels of a news story this week by Capitol News Service that linked White and the state Department of Education (DOE) to Rupert Murdoch and his News Corp. which was embroiled in the hacking scandal two years ago in which cell phone communications were compromised in Europe.

Emails obtained by CNS revealed plans by DOE to enter sensitive student and teacher information—including names, social security numbers and grades—into a massive electronic data bank being built by Wireless Generation, a subsidiary of News Corp., as part of a project called the Shared Learning Collaborative (SLC) being spearheaded by the Bill and Melinda Gates Foundation.

The CNS story has generated a movement among parents to notify White and DOE that they do not want any information on their children provided to any outside entity.

The proposed collection of data on students has already begun in a few states and has created considerable controversy in places like New York. That state’s contract with News Corp. was first approved, then cancelled, only to be reapproved last August as one of several subcontractors for Public Consulting Group, one of four contractors chosen for the $27 million contract.

Under the proposal, Wireless Generation is supposed to store student test scores, student demographic information, curriculum materials, lesson plans and other information and would presumably perform the same function for Louisiana.

Though no cost estimates have been provided for the program in Louisiana, providers for the New York program will be paid in part based on the number of school districts that choose their data systems.

The Gates Foundation plans to turn over the personal data it collects to another, as yet unnamed corporation headed by Iwan Streichenberger, former marketing director for an Atlanta company that sells whiteboard to schools.

A copy of a 68-page contract between SLC and the New York State Educational Department was provided by a citizens’ watchdog group in that state. The contract said, in part, that there were no guarantees that data would not be susceptible to intrusion or hacking, though “reasonable and appropriate measures” would be taken to protect information.

“I have prepared a bill calling for a constitutional amendment making the Louisiana Superintendent of Education elected and not appointed,” Kostelka said in an email to CNS on Thursday. “It will be difficult to pass, but the people should decide who their superintendent is—not the governor.”

Technically, the state superintendent is not chosen by the governor but by the Board of Elementary and Secondary Education (BESE). The reality, however, is that Gov. Bobby Jindal campaigned for and contributed monetarily to the campaigns of favored BESE candidates in the fall of 2011 after the previous board had held up the appointment of White, Jindal’s choice for the post. Only after several pro-Jindal candidates were elected did BESE eventually formally appoint White upon their taking office in January of 2012.

Kostelka, in authoring such a bill, risks incurring the wrath of Jindal who, in popular Baton Rouge parlance, would likely “teague” Kostelka out of this committee chairmanship and even demote him from his current committee seats to minor committees.

The term “teague” comes from Jindal’s firing of Melody Teague in October of 2009 one day after she testified before the Government Streamlining Committee. She appealed and eventually won her job back.

But six months later, her husband Tommy Teague, was fired as director of the State Office of Group Benefits because he did not endorse the privatization of his agency quickly or enthusiastically enough to please Jindal.

Jindal has a well-established tradition of demoting or firing legislators, state civil service employees and appointees who dare display any independence.

He doesn’t do the actual firing, of course, and even goes to great length to deny any involvement in the decision to fire or demote. Instead, he hands off that task to agency heads or cabinet members do the firing and either Speaker of the House Chuck Kleckley (R-Lake Charles) or Senate President John Alario (R-Westwego).

Posted in ALEC, American Legislative Exchange Council, Computers, Education, Governor's Office, House, Senate, Legislature, Legislators, OGB, Office of Group Benefits, Privatization, Public Records, State Agencies | 3 Comments »

Father sends email prohibiting DOE’s release of children’s personal data; shows how others can protect kids’ privacy

February 21, 2013 by tomaswell

Pursuant to our publication of Department of Education (DOE) emails which revealed plans for DOE to provide sensitive personal student and teacher information to a computer data bank controlled by a company affiliated with News Corp. owner Rupert Murdoch and the Bill and Melinda Gates Foundation, one parent has decided to take action.

The parent, who shall remain nameless here, sent an email to State Superintendent of Education John White directing that no information on his children be released by DOE under provisions of the Family Educational Rights and Privacy Act (FERPA).

Taking our cue from the American Legislative Exchange Council (ALEC) which drafts model legislation for introduction by state lawmakers, we include his email to White here as a “model letter” for the purpose of prohibiting DOE from providing data to outside vendors.

To send your own message, here is John White’s email address:

john.white@la.gov

My name is (PARENT’S NAME) and I am a parent of children in Louisiana public schools. This is to formally inform you that you do not have my permission to share my children’s personally identifiable student information with any external agency, researcher, non-profit group, vendor or government or quasi-government agency under any circumstances (specifically, name, DOB, SSN). They are public students in the (parish/city/parochial) school system and you have not asked my permission to share their information as required by law. I am purposefully informing you that you do not have permission to share their information unless I provide appropriate parental guidance. Their/his/her name(s) is/are (STUDENT’S OR STUDENTS’ NAME[S]). If you already have, I would like you to promptly request that his/her/their information be expunged from any data set you have already shared.

Mr. White, on the basis of your e-mails it appears you are planning on sharing this data and I will hold you personally responsible for any subsequent violations. I will be recommending that other parents likewise notify you if they do not wish their information to be shared with corporations/vendors whom you have agreed to not hold liable for any security breaches or unauthorized releases (which I don’t believe you have a legal right or authority to do). Moreover, any such release of personally identifiable information without each parent’s express permission will be a direct violation of the Family Educational Rights and Privacy Act (FERPA) and a willfully unnecessary one since you have non-personally identifiable student identifiers and have taken great pains to claim FERPA exclusions for all other releases of de-identified student data to the media, researchers, and the general public.

Please note the section in the last paragraph below. Schools may disclose, without consent, directory information. But you must notify us when doing so. You, however, do not have my consent and you are not a school. You have my absolute, unequivocal, official refusal on record.

You also do not have a legal right to require social security numbers from any student in Louisiana. I will be recommending parents and school districts to promptly stop providing them as you seem unwilling to guard this information as required by law.

Thank you for your prompt attention to this matter.

(PARENT’S NAME)

Family Educational Rights and Privacy Act (FERPA)

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children’s education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are “eligible students.”

• Parents or eligible students have the right to inspect and review the student’s education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

• Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

• Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

o School officials with legitimate educational interest;

o Other schools to which a student is transferring;

o Specified officials for audit or evaluation purposes;

o Appropriate parties in connection with financial aid to a student;

o Organizations conducting certain studies for or on behalf of the school;

o Accrediting organizations;

o To comply with a judicial order or lawfully issued subpoena;

o Appropriate officials in cases of health and safety emergencies; and

o State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, “directory” information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

Posted in Politics | 27 Comments »

Notable Quotables (in their own words)

February 21, 2013 by tomaswell

“When it comes to K through 12 education, we see a $500 billion sector in the U.S.”

—Fox Network magnate Rupert Murdoch, commenting in 2010 on the enormous business opportunity in public education awaiting corporate America.

(A repeat, but worth re-reading in light of emails released this week by the Department of Education.)

Posted in Politics | 3 Comments »

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