DISTRICTS ‑- SCHOOLS ‑- PUBLIC RECORDS ‑- STUDENTS ‑- PARENTAL ACCESS TO SCHOOL DISTRICT RECORDS RELATING TO STUDENTS
(1) Under the provisions of Initiative No. 276, a public school district may allow the parents of a student enrolled therein to inspect the district's records pertaining to that student in those instances where the student is 18 years of age or older unless to do so will violate a right of privacy of the student who is the subject of the particular record and this information cannot be deleted from the record without destroying it.
(2) The question of whether disclosure of any particular information in a school district's records respecting its students would violate the student's right of privacy is to be decided on a case‑by-case basis in the courts in accordance with the procedures set forth in §§ 31, 33 and 34 of Initiative No. 276 (chapter 1, Laws of 1973).
- - - - - - - - - - - - -
April 16, 1973
Honorable C. J. Rabideau
P.O. Box 951
Pasco, Washington 99301
Cite as: AGO 1973 No. 10
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
May a public school district allow the parents of a student enrolled therein to inspect the district's records pertaining to that student in those instances where the student is 18 years of age or older?
We answer this question in the affirmative subject to the qualification set forth in our analysis.
[[Orig. Op. Page 2]]
In your letter you have keyed your question primarily to the 1971 legislature's reduction of the age of majority from 21 to 18 years (see, chapter 292, Laws of 1971, Ex. Sess.). As we view it, however, the more significant issue raised by your request involves the "public records" segment of Initiative No. 276, now codified as chapter 42.17 RCW. See, AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecuting Attorney, Snohomish County on January 19, 1973]], copy enclosed, in which we discussed the impact of this portion of the initiative1/ upon school district records in some detail.
The basic thrust of this part of Initiative No. 276 is to make all "public records" as broadly defined in § 2 (24)2/ open to inspection by any person asking to see them ‑ irrespective of his relationship to the individuals who may be the subjects of the particular records. See, § 27, quoted on page 9 of this opinion.
Under § 31 (1) of this measure,3/ however, a qualified [[Orig. Op. Page 3]] exemption from public inspection is granted with respect to some ten separate specifically described categories of records maintained by public agencies, including the following which is germane to your question:
"(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, welfare recipients, prisoners, probationers or parolees."
The express qualification upon this and all of the other exemptions provided for in this subsection is spelled out in subsection (2) of § 31 as follows:
"(2) The exemptions of this section shall be inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interest, can be deleted from the specific records sought. No exemption shall be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons."
In addition, in § 26 of the initiative which, along with § 27,supra, states the underlying disclosure requirement of this chapter of the initiative, it is provided that:
"(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records. To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing." (Emphasis supplied.)
Paraphrasing AGO 1973 No. 4, supra, at page 11, it will here accordingly be seen, in the final analysis, that the question to be asked under both §§ 26 and 31 is essentially the same; i.e., will the disclosure of information contained in a school district's records of one of its students to one or both of that student's parents result in ". . . an unreasonable invasion of personal privacy, . . ." or a ". . . violation of [[Orig. Op. Page 4]] [the student's] right of privacy . . .?" If this question is answered in the affirmative, then, under Initiative No. 276, the record on which the information is contained may not be made available for inspection unless the protected portion of the record can be deleted. On the other hand, if the information is not deemed to be protected by one or both of these sections of the initiative, or if it can be deleted without destroying the record, then inspection must be permitted.
However, as will next be seen from a reading of this prior opinion at pp. 11-13, this is not a question which can readily be generalized upon in the abstract for, as specifically indicated on page 12, the framers of the initiative
". . . did not define or otherwise state specific standards outlining the right of personal privacy ‑ in apparent recognition of the uniqueness of that right to each individual or entity which might wish to raise it in opposition to the disclosure of a particular record. Instead, they appropriately left it to the court to protect that personal right on a case‑by-case basis as it is individually invoked, under procedures which they spelled out in three separate portions of Chapter IV of the initiative."
After making this observation we then went on to describe the procedures established by §§ 31, 33 and 34 of the initiative to obtain judicial review of the precise status of any given record ‑ in terms of whether or not its release, in whole or in part, would impair a right of privacy running in favor of the individual who is the subject of the particular record or records being sought. Under these sections we indicated that this issue can either be presented to the court for its determination by means of a refusal by the custodial agency to allow the subject record to be examined ‑ followed by a suit by the requester to compel it to do so ‑ or by an injunctive action initiated either by the custodial agency or the person to whom the record pertains to obtain a court order barring access to the particular record. Which of these two courses of action is taken by a particular public agency is, of course, essentially a policy question ‑ although we would think that if the agency's decision is to release the records in question unless enjoined from doing so it would [[Orig. Op. Page 5]] probably be wise for the agency, before it acts, to notify the individual who is subject to those records that it is about to release them.
Within the foregoing frame of reference it will readily be seen that neither the child's age nor the fact that the person seeking access to the particular records is his or her parent is of any legal significance ‑ except as one or both of these factors may bear upon the existence or nonexistence of a right of privacy running in favor of the child. In other words, it might well be that in a given case involving the school records of aminor child there would be no protective right of privacy with respect to a particular record as against the child's own parent, even though such a right would exist as against some other member of the public. To the extent that this is so only because of the child's age, however, it would then seemingly follow that if the subject of the records is no longer a child a right of privacy would then attach ‑ again, even as against his or her parents ‑ so as to exempt the particular record from even their inspection under the initiative.
Unfortunately, our research has disclosed no generally or universally applied rule of law which either categorically recognizes or disclaims the existence of a right of privacy as between parent and child on the basis of whether the child has attained the age of majority or otherwise has become emancipated. Therefore, we can here only suggest the possibility that this factor may be relevant in a given case. In the final analysis, however, this can only be determined by the court in the particular case, for the reasons above explained.
We trust the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Chapter IV, encompassing §§ 25-34.
2/"'Public record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics."
The term "writing," in turn, is defined by § 2 (25) as meaning:
". . . handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds; or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums and other documents."
3/The full text of this section is quoted on pp. 7-9 of the enclosed prior opinion.