Can a School Board Member Use Student Records to Send Campaign Messages?
A little story out of Lexington, Ky., raises some big questions for K-12 districts to consider on how to handle ongoing murkiness over student privacy, open-records laws, and how candidates for school boards should best be communicating with their constituents.
The hubbub occurred after Will Nash, who was appointed to the Fayette County district's school board last year, submitted an open-records request to the district for directory information, including the name, address, and phone number of parents in his board district. After the school district supplied the information, Nash sent out about 12,000 individual texts asking for support in the upcoming school board election, in addition to mailing out a survey.
Soon the district started getting some calls of its own—from irate parents.
One problem: The district appears to have mistakenly released some emergency contact information, not traditional directory information, which is generally limited to things like students' names and addresses. Some people without children in the district's schools—and even some located out of state—got the solicitations.
But even parents with students in the district felt like their privacy had been invaded, according to local news reports.
According to the Lexington Herald Leader, district officials said they'd failed to follow their own procedures for vetting open-records requests. The Fayette district's confidentiality handbook says that student directory information can be released only in connection with "student help activities," like awards and scholarships, and the requests must be vetted by the superintendent, which didn't happen in this case.
The district didn't immediately respond to a request for comment.
Using this data for the purposes of a down-ballot election like a school board race may be a first, but it's a good reminder that there's a lot you can do with basic directory information.
Unlike other student records, directory information generally doesn't need parental consent for release. Parents generally have to opt out of sharing directory information, typically by sending in a written request or filling in an opt-out form. Just what counts as directory information also appears to vary from school district to district; some districts also include students' enrollment status, honors, even the height and weight of student athletes in that category.
It's through directory information requests that colleges, marketers, and nonprofits get the data they need to mail students admissions brochures, class-ring solicitations, and even scholarship notices.
Campaigns, meanwhile, have long used publicly available data sets to create mailing lists, and text messages are just the newest wrinkle. (In fact, there is quite a lot of debate over whether campaign-related text messages should be regulated in the same way that robocalls and other automated marketing is; the Federal Communications Commission has so far not clarified this matter.)
In an interview, Nash said he never meant to upset parents. He said he requested the information out of a genuine desire to combat the very low turnout that typically accompanies school board and other down-ballot races. He said he made his open-records request as a private citizen, not as a board member, and that the district had no hand in paying for the texts or flyers.
"As a school board member, I know that I hear from a very vocal superminority of my constituents, and there is no way to reach out to your constituents unless you build a database yourself," he said in an interview. And that applies to school board candidates, too, he added.
Nash apologized to Lexington officials in a lengthy statement, but that hasn't stopped other board members from demanding a more detailed investigation.
And his rival for the board seat, Christy Morris, has accused him of abusing his public position. "This information was then used for personal and political gain weeks before a high-stakes election by a trained board member who knew or should have known this was unethical and wrong," she said in a Facebook post.
Does Intent Matter?
Lexington officials, the local newspaper reported, say they plan to insert "even more restrictive" policies around directory information records requests, and Nash said he supports that move.
But not all experts agree that the district is handling the situation correctly.
Frank LoMonte, an expert on open-records law and on the Family Educational Rights and Privacy Act, said Kentucky school districts should not be able to ask for the intent behind a directory information request before determining whether to fill it. Most states don't consider directory information to comprise an invasion of privacy, so curbing access to it raises a host of concerns.
"Once you invite an agency to determine who gets documents, that opens the door to discriminating against journalists you don't like, or your critics, or your competitors," said LoMonte, the director, the Brechner Center for Freedom of Information at the University of Florida.
And arguably, he said, that public information should include cellphone numbers of the kind that Nash was given.
"I don't know of any court that has said a cellphone number is an intimate piece of information, given how readily people give them out," he said.
The question of which data can be permissibly released, of course, is a different one from whether using it the way Nash did is a good idea or not.
"You're running the risk you're going to alienate many more people than you're appealing to," LoMonte concluded.