A South Whidbey School District policy to name online the requestors of public records may be a violation of federal student privacy laws.

Open government champions have expressed concern that the policy may run afoul of the Family Educational Rights and Privacy Act, commonly referred to as FERPA. The rules protect student education records from public disclosure, and apply to all schools that receive U.S. Department of Education funding, including South Whidbey.

Several parents have now joined those raising concern about the policy, specifically its implications concerning FERPA, and they’ve either already taken or are considering legal action against the school district. Superintendent Jo Moccia this week confirmed that the district’s online document has been modified to reflect some of those concerns, but that there is disagreement about whether a FERPA violation has actually occurred.

“The district disagrees with the legal interpretation,” she said.

Completely separate and autonomous from the state’s Open Public Records Act, which allows the publication of requestors identities, FERPA prohibits the release of records to anyone but adult students and parents. The problem is they are different sets of rules with different requirements, and that means the requests can’t be handled the same way.

Specifically, listing FERPA requestors with those who have asked for records under the state records act is not permitted, according to Michele Earl-Hubbard, president of Allied Law Group and one of the state’s leading open government attorneys.

“If they are treating these as the same thing, they are breaking federal privacy laws,” she said.

Earl-Hubbard is vice president of the Washington Coalition for Open Government, a non-partisan and non-profit organization that works through the courts and the state Legislature to defend and strengthen Washington’s open government laws.

The school’s online document, first posted in December, listed the identities of requestors who voluntarily gave their names, what they asked for and the estimated cost to the district to satisfy the request. It listed people who made state records requests, but also at least two parents who asked for student documents.

Both say they asked school district officials to remove their names and the details of their requests, but changes weren’t made until this week. The modification came in the wake of Clinton residents Mark Helpenstell’s and Tisa Seely’s reading of a letter from their attorney to the school board at the group’s February meeting.

They alleged that identifing Helpenstell online violated a number of statutes, but particularly FERPA. Boiled down, they contend that in a small community like South Whidbey it all but named their child. Also, listing the details of such requests alerts the public to the existence of certain kinds of records.

For example, if a parent asks for disciplinary records and the request is published then the general public now knows that such records may exist.

“Clinton is a small community and Mr. Helpenstell is well known as a civic leader,” wrote Katherine A. George, Helpenstell’s and Seely’s attorney in the letter to the board. “The school district is violating FERPA in its misguided attempt to humiliate records requesters, and punishing a child simply because his parents are trying to oversee his education.”

Helpenstell is a South Whidbey Parks and Recreation District commissioner.

George, an attorney with Seattle-based Harrison-Benis, LLP, is also a board member for the Washington Coalition for Open Government. She specializes in state sunshine laws and education.

In her letter, George called the identification of requestors a “shaming” policy, citing quotes from open government advocates, including Earl-Hubbard, and school board members in recent coverage by The Record.

In a later interview, she echoed Earl-Hubbard’s concerns, saying FERPA and the state’s rules are not the same. She claims Helpenstell  and Seely asked for FERPA records but is still being listed with people who asked for state records act documents.

“It’s being treated as a public records request and it’s not,” George said.

Moccia acknowledged this week that the district recognizes the difference between the two sets of rules and says the two are not handled the same way. People who specifically ask for documents under FERPA are not and will not be included in the online document.

“Clearly, a FERPA request is a FERPA request; it’s different,” Moccia said.

She contends, however, that Helpenstell’s request began as a state records request, making his name disclosable. Also, the district’s attorney disagrees that parent identities are nondisclosable even if they ask for student records, she said.

A description of the records sought may be a different story, and out of concern for student privacy, said Moccia, the online document was modified — the description now only says, “student records.”

Moccia said she couldn’t help but question the voiced privacy concerns, however, when George’s letter was emailed to newspapers. She also noted that just because a record is requested doesn’t mean it actually exists.

Helpenstell said the online change was a positive step but doesn’t go far enough. George’s letter asked for the description and his name to be struck from the document immediately. As it has yet to happen, he said the next step is to file a complaint with the Department of Education’s FERPA compliance office. If the dispute is still not resolved, they may consider other options, he said.

“I’d like to believe the school board will do the right thing here and we won’t have to explore that,” Helpenstell said.

If a lawsuit was pursued, it’s unclear how much of a case they’d have. Eric Hood, the other parent who asked for students records, recently filed an emergency “motion to protect student privacy” in federal court. The motion, which was filed under seal, was denied, according to court documents.

Hood declined to be interviewed for this story.

According to Moccia, the intent behind the policy has always been to keep the board informed about the time and resources dedicated to addressing records requests; it’s never been geared toward discouraging people from asking for information, she said. Furthermore, the policy itself has generated so much attention that it’s created a workload that’s taking her away from other, more important matters. She’s now questioning whether the policy is worth all the trouble.

“I’m spending so much time on this; I’ve got other things to do,” Moccia said.

“From my perspective, I’d rather not do it at all.”

Moccia said the policy and possible changes will likely be discussed at the board’s next meeting, March 25. A workshop is at 6 p.m. and the business meeting begins at 6:30 p.m.