Skinner v. Board of Trustees of Colorado School for the Deaf and Blind et al

Filing 91

ORDER: For the reasons set forth above, the Motion is granted in part and denied in part as to Interrogatory Nos. 2 and 4 and granted as to Request for Production No. 9. Defendant School Board shall produce the requested information and documents on or before October 10, 2013. By Magistrate Judge Kristen L. Mix on 10/01/13. (Attachments: # 1 Attachment) (alvsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02666-RM-KLM
MAP, a Disabled and Incompetent Person, and
CORINA S. SKINNER, his Guardian, Parent and Next Friend,
Plaintiffs,
v.
BOARD OF TRUSTEES FOR COLORADO SCHOOL FOR THE DEAF AND BLIND,
COLORADO SCHOOL FOR THE DEAF AND BLIND,
LOUIS TUTT, Individually and in his Official Capacity as Principal for the Colorado School
for the Deaf and Blind, and
DOES 1-10, who are unknown persons,
Defendants.
_____________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ oral Motion to Compel Responses to
Interrogatory Nos. 2 and 4 and Request for Production of Documents No. 9 to
Defendant Board of Trustees for the Colorado School for the Deaf and Blind (“Board
of Trustees”) (the “Motion”). The Court held a hearing on the Motion on September 23,
2013. For the reasons set forth below, the Motion is granted in part and denied in part.
I. Background
The facts of this case are set forth in detail in the Recommendation of United States
Magistrate Judge [Docket No. 72; Filed August 21, 2013] and need not be repeated here.
Plaintiffs seek information and documents relating to executive sessions of the Defendant
Board of Trustees held between the fall of 2009 and the spring of 2011. The Board of
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Trustees objects to providing the information sought in the interrogatories on the basis of
the “executive session privilege” pursuant to state law (C.R.S. § 24-6-402(3)(a)), as well
as the attorney-client privilege and the deliberative process privilege. The Board of
Trustees objects to providing the documents sought in the Request for Production of
Documents on the basis of federal law protection for educational records (20 U.S.C.
§1232g(b)(1) and (2) and 34 C.F.R. § 99.31). Defendant Board of Trustees for the
Colorado School for the Deaf and Blind’s Response to Plaintiffs’ First Set of Interrogatories
and Requests for Production, attached as Exhibit A, at 5-7, 8-9, 15.
II. Analysis
A.

The “Executive Session Privilege”
Plaintiffs assert claims against the Board of Trustees pursuant to 42 U.S.C. § 1983,

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., Title II of the
Americans With Disabilities Act, 42 U.S.C. § 12134, and the Rehabilitation Act of 1973,
including Section 504, 29 U.S.C. §§ 701, 705, 794 and 794a. When federal law governs
the rule of decision, federal common law governs the existence of a privilege. See Cutting
v. United States, No. 07-cv-02053-REB-MEH, 2008 WL 1775278, at *2 (D. Colo. Apr. 14,
2008).
This Court has previously held that the state “executive session privilege” does not
apply in cases asserting federal claims. Joyce v. North Metro Task Force, No. 10-cv00649-CMA-MJW, 2011 WL 1884618, at *3 (D. Colo. May 18, 2011). Moreover, “[f]ederal
law has not recognized a specific privilege for records of executive sessions of State
Boards, unless there is another recognized privilege involved, such as the attorney-client
privilege.” Id. (citing Sprague v. Thorm Americas, Inc., 129 F.3d 1355, 1369 (10th Cir.
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1997)). Plaintiffs have not contested the applicability of the attorney-client privilege and the
deliberative process privilege to the information sought in Interrogatory Nos. 2 and 4.
Therefore, although the “executive session privilege” is inapplicable, information which is
protected by the attorney-client privilege or the deliberative process privilege need not be
provided in response to these Interrogatories. Accordingly, the Motion is granted in part
and denied in part regarding Interrogatory Nos. 2 and 4.
B.

Confidentiality of Educational Records Under Federal Law
The Board of Trustees asserts that the Family Educational Rights and Privacy Act

of 1974 (“FERPA”), 20 U.S.C. § 1232g(b)(1), and a regulation promulgated under the
statute, 34 C.F.R. § 99.31, protect the confidentiality of records from its executive sessions
and precludes their disclosure. Aside from a cryptic statement to that effect in the Board
of Trustees’ discovery responses, see Exh. A at 12, neither party has further addressed the
issue, either in writing or during argument on the Motion.
FERPA has been described by the United States Supreme Court as prohibiting
federal funding of educational institutions that have a policy or practice of releasing
educational records to unauthorized persons. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
In Gonzaga, the Court held that FERPA does not create a private right of action under 42
U.S.C. § 1983. In doing so, the Court “noted that the non-disclosure provisions are both
directions to the Secretary of Education and commands to make no funds available to
educational institutions that have in place the disfavored policy or practice.” Taylor v.
Vermont Dep’t of Educ., 313 F.3d 768, 784 (2d Cir. 2002). “The statute, and regulations
enacted pursuant thereto, however, permit the disclosure of personally identifiable

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information pursuant to a judicial order or subpoena so long as the parent or student is
notified prior to compliance and given an opportunity to object or take corrective action.”
Cherry v. Clark Cnty. Sch. Dist., No. 2:11-cv-01783-JCM-GWF, 2012 WL 4361101, at *5
(D. Nev. Sept. 21, 2012).
The statute is expressly limited to “the education records of a student,” “the
education records of . . . children,” and “the education records maintained by the State
educational agency on . . . children.” 20 U.S.C. §1232g(1)(A) & (B). It defines “education
records” to mean “those records, files, documents, and other materials which (i) contain
information directly related to a student; and (ii) are maintained by an educational agency
or institution or by a person acting for such agency or institution.”

20 U.S.C. §

1232g(a)(4)(A). The definition of “education records” provided in the statute excludes
“records of . . . administrative personnel and educational personnel ancillary thereto which
are in the sole possession of the maker thereof and which are not accessible or revealed
to any other person except a substitute . . . .” 20 U.S.C. §1232g(a)(4)(B)(i).
In addition, the regulations promulgated under the statute contain exceptions for
disclosure of “personally identifiable information from an education record of a student
without the consent required,” under a variety of circumstances. “Personally identifiable
information” is defined as including a student’s name, parent’s name, the student’s or
parent’s address, social security number, or other information that would make the
student’s identity easily traceable. 34 C.F.R. § 99.3. The circumstances under which
“personally identifiable information” may be disclosed include “if . . . the disclosure . . . is
to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense.”
34 C.F.R. § 99.31(a)(13).
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Finally, the Tenth Circuit Court of Appeals has construed FERPA to apply to “broad,
routinized disclosures” of documents, but not to “a targeted, discrete, contemporaneous
disclosure.” Jensen v. Reeves, 3 Fed. App’x 905, at *4 (10th Cir. 2001).
Defendant’s reliance on FERPA is not justified without further explanation of how
documents relating to executive sessions of the Board of Trustees meet the plain statutory
requirements of FERPA. Defendant fails to specify whether the documents fit the statutory
definition of “education records,” whether they contain “personally identifiable information,”
or why regulatory exceptions to disclosure are inapplicable. Defendant further fails to
provide legal authority for the notion that FERPA precludes the type of targeted disclosure
sought here, and the Court has found none.
In the absence of such information, the Court cannot find that Defendant has carried
its burden of showing that the documents sought are not discoverable. Null v. National
Ass’n of Certified Home Inspectors, No. 12-cv-00311-MSK-KLM, 2012 WL 5835371, at *2
(D. Colo. Nov. 16, 2012); Kellar v. U.S. Dep’t of Veteran Affairs, No. 08-cv-00761-WYDKLM, 2008 WL 4716893, at *1 (D. Colo. Oct. 22, 2008) (citing Sonninno v. Univ. of Kan.
Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004)). Accordingly, the Motion is granted
regarding Request for Production of Documents No. 9.
III. Conclusion
For the reasons set forth above, the Motion is granted in part and denied in part
as to Interrogatory Nos. 2 and 4 and granted as to Request for Production No. 9.
Defendant School Board shall produce the requested information and documents on or

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before October 10, 2013.
Dated: October 1, 2013

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