Fairfax County Public Schools Leaks Again

Two years ago, school bureaucrats in Fairfax County, Virginia, filed a lawsuit against journalist and mom Callie Oettinger after she reported about their overspending on legal fees. Another Fairfax County parent had requested copies of the school district’s invoices under the state’s Freedom of Information Act—which she had a legal right to do—and shared them with Oettinger, who was shocked by how excessive the school’s legal fees were. Oettinger redacted and published copies of the invoices—which she also had a legal right to do.

But rather than admit their mistake, the embarrassed school administrators decided to punish Oettinger by suing her. It was a clear violation of the First Amendment, and we successfully defended her in court.

Then it happened again.

This fall, Oettinger asked to see school records about her own children—a request the school must comply with under a federal law called the Federal Educational Rights and Privacy Act, or FERPA. And they did: they invited her to come to the school’s facilities and look over the documents herself. But when they gave her the records—about a dozen boxes of paper and a box of thumb drives and computer discs—she was shocked to find how poorly the records were organized; many of them mislabeled or unlabeled, or saved incorrectly in the case of digital records. Not even the school district’s IT expert or paralegal (who was with Oettinger the entire time), could open some of the digital records—despite the fact that the school district had previously testified to the Virginia Department of Education that it gave Oettinger working copies after Oettinger complained about them being withheld.

The school district’s failure to provide Oettinger accessible records previously wasn’t the only screwup. It turned out the drives contained information for over 30,000 kids in addition to information about Oettinger’s own kids. Federal law requires schools to have policies in place to prevent inadvertent disclosure of this confidential information, but the school district didn’t follow any protocols; its employees just handed over the records. This despite the fact that Oettinger repeatedly asked if these were her kids’ records.

When Oettinger realized what had happened, she filed complaints with federal and state law enforcement and educational agencies, and after carefully redacting the documents to delete any personal information about kids and families, showed a reporter some of the more shocking revelations about the school board’s misbehavior—including what appeared to be a pattern of retaliation against Oettinger herself by school officials upset about her previous efforts to hold them accountable.

One thing that became clear from the documents was that the school district was bending the rules in order to avoid state and federal transparency requirements. For example, in one email exchange, a school employee wrote in an email “I am keeping [a lawyer] on the email thread to keep it attorney client privileged.” Of course, that’s not how attorney-client privilege works; you can’t just cc a lawyer and thereby magically transform a document into a privileged document. The fact that officials were trying this trick shows that they have probably tried to conceal other documents that people have a right to see by disingenuously claiming “privilege” over documents that aren’t privileged.

Of course, Oettinger was careful not to publish or distribute any personal information about kids—she never has done so, and has no interest in doing so. In the case of some students whose names she recognized while looking at her own kids’ records, she took extra care to redact documents specific to each student and then provided them to those students’ parents, to make them aware of the school district’s failure to secure private information.

The school board’s response? Once again, to get angry at Oettinger. They sent her a letter threatening to sue her.

Of course, they had no grounds for suing someone for a mistake they themselves made; FERPA doesn’t allow it and the First Amendment certainly doesn’t. So once again, the Goldwater Institute stepped in, and over the past few weeks, arranged for the school superintendent to issue a public statement acknowledging that they were at fault for turning over the documents—and that Oettinger never published or gave out personal information about students or parents. In their latest public statement, the school district acknowledges that their employees “inadvertently and unknowingly made accessible” confidential information about students, that systemic changes are needed, and that Oettinger “deleted and do[es] not have any of the identifiable student information” in question.

(Strangely, some parents in the district have gotten the impression that Oettinger violated students’ privacy rights—when it was the school board that did so, as they have now admitted. Fairfax County parents who wish to file complaints about a violation of federal or state privacy rights can do so through Oettinger’s website.)

It’s a relief that this incident ended without having to involve the courts. But it’s distressing whenever school bureaucrats try to evade the transparency laws—laws intended to safeguard against misbehavior as well as accidents by public servants.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.