hier v. slate valley sch dist

                                                                                                              Vermont Superior Court
                                                                                                                          F11   d
                                                                                                                            fintllzfi'l/d) 14343?




VERMONT SUPERIOR COURT                                             1
                                                                  fl4                          CIVIL DIVISION
Rutland Unit                                                                               Case N0. 23-CV-03778
83 Center St
Rutland VT 05701
802-775—4394                                                EE
wwwvermontjudjciaryorg

                        Curtis Hier v. Slate Valley Unified School District


                                 ENTRY REGARDING MOTION
Title:            Motion for Summary Judgment (Motion: 1)
Filer:            Sean M. Toohey
Filed Date:       October O4, 2023


The motion is DENIED.

        Petitioner made requests to school administrators for specific forms and other
documentation of incidents in which students at the Fair Haven Grade School have been subject
to restraint or seclusion. He has exhausted administrative processes and seeks the documents as
public records to Which he claims entitlement pursuant to Vermont’s Access to Public Records
Act, 1 V.S.A. §§ 315—320. The Respondent Slate Valley Unified Union School District
(hereinafter “District”) claims that the documents are exempt from disclosure as “student
records” under 1 V.S.A. § 317(c)(11), and has filed a Motion for Summary Judgment which the
Petitioner opposes, claiming the exemption does not apply as he seeks redacted versions only,
without student names. Oral argument was heard on November 29, 2023.



                                                        Facts
        The material facts are not in dispute.1 The facts show that Petitioner made an initial
request that was later modified and the modified version became the first of three requests
seeking certain school records. All were duly appealed and denied by the Superintendent of the
District, making them ripe for appeal to this court. Although not presented this way by the
paIties, the court describes the three requests ripe for adjudication below separately as I, II, and
III. The italicized quotations below identify the records sought in the appeal of each request?



1
  In its Statement of Undisputed Material Facts, Respondent included some information about the relationship of the
parties and history of prior communications and requests. The court agrees with Petitioner that this historical
information is not material to the issue before the court. Only the material facts are presented here and used in
analyzing the claim.
2
  Where a portion of a request was for other documents that were provided to Petitioner, that portion of the request is
excluded from this summary of facts.
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23—CV—03778 Curtis Hier v. Slate Valley Unified School District
REQUEST I:
8/2/23-Mr. Hier sought redacted copies of “4500 forms” submitted from January-April 2021.3

8/4/23-The request was denied in a letter from the attorney for the Slate Valley Unified Union
School District stating that “Rule 4500 forms are student records.” The letter concluded with “. .
.you may appeal this decision to Superintendent Brooke Olsen Farrell as head of agency pursuant
to 1 V.S.A. § 318.”

8/9/23-Mr. Hier submitted an appeal and an amendment to his request as follows: “I have
received information that the AOE received no form 4500s from this school district between
January and April 2021. So please provide redacted copies of any 4500 forms filled out by any
employee in the school district during that period. Just to clarify, I am requesting all redacted
reports of the use of restraint and seclusion from January through April 2021.”4
8/11/23-This appeal was denied in a letter from the attorney for the District which concluded
with the statement that “you may file suit pursuant to 1 V.S.A. § 319.”
REQUEST II (filed prior to the denial of the appeal in Request I)
8/10/23-Mr. Hier initiated a new request: “I am also requesting any documents related to the use
of the ‘Blue Room’ or ‘calm down space’ or any other such room at FHGS [presumably Fair
Haven Grade School] during that period. [January to June 2021].5 I am further requesting all
documents from FHGS regarding the use of restraint and seclusion from that period.”

8/11/23-The request was denied in a letter from the attorney for the District. It stated, in part, “To
be clear, the District has 4500 forms from the period requested, but they are exempt under the
Public Records Act because Rule 4500 forms detailing instances of restraint or seclusion of
students are student records.” (Ex. A4)

8/14/23-Mr. Hier’s request was amended as follows: “I am broadening my request, in addition to
my August 10 request, to see all appropriately redacted documents regarding the use of the ‘Blue
Room’ or any room used for seclusion or to isolate students at FHGS from 2015 to 2022.”

8/17/23- The request was denied in a letter from the attorney for the District. It stated, in part,
that with “regard to the ‘Blue Room’ request, the District does not have any records other than
the previously requested 4500 forms concerning the restraint and seclusion of students. As

3 “4500 Forms” are forms required to be completed by school personnel when a student is restrained or secluded and

are described in more detail below. The facts as presented by the parties do not describe to whom this request was
directed, nor to what school(s) within the District it pertained nor its exact content. In the appeal Petitioner seeks
such forms related to the Fair Haven Grade School.
4 Reports are made to the School Administrator. Only reports with certain content are forwarded to the

Superintendent or Commissioner of Education. Rule 4503, infra.
5 The time period was identified in a simultaneous request for emails. The denial letter from the attorney for the

District also stated: “With regard to the emails, please see the attached. Student names and information in the emails
are redacted consistent with 1 V.S.A. § 317(c)(11) and FERPA.”
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previously stated in the denial of your appeal dated August 11, 2023, the Rule 4500 forms are
student records, which are exempt from the Vermont Public Records Act, 1 V.S.A. §
317(c)(11).”
The letter concluded by stating that the decision could be appealed to Superintendent “as head of
agency pursuant to 1 V.S.A. § 318.”

8/18/23-Mr. Hier appealed to the Superintendent.

8/23/23-The Superintendent denied the appeal in an email: “Thank you for the appeal. I deny it.”

REQUEST III

8/25/23-Mr. Hier directed a request to the Superintendent in an email: “I am requesting redacted
restraint and seclusion documents concerning Rebecca Armitage from anytime during her
career. Ms. Armitage, as assistant principal, dealt with many students. It would be impossible to
identify any of them from the student population at FHGS.”
8/30/23-The Superintendent denied the request in an email based on the exemption for student
records.
8/30/23-Mr. Hier responded in an email that he was appealing the 8/25/23 request.
9/6/23- The Superintendent denied the appeal and stated, “You may seek further review as set
forth in the letters. 1 V.S.A. § 319.”


                                              Conclusions of Law
       In pursuing the appeal to this court, Mr. Hier wrote: “Defendant refused to provide
documents relating to Rebecca Armitage and restraint and seclusion incidents at Fair Haven
Grade School. . .I am asking. . .to enjoin Defendant to provide requested documents relating to
Rebecca Armitatge [sic] and restraint and seclusion incidents at Fair Haven Grade School.”
        The court interprets this as pursuit of the information in all three appeals, and that the
subject of this suit therefore includes the following related to Fair Haven Grade School:
        Redacted 4500 forms filled out by any District employee from January through April
         2021
        Any documents relating to the use of the “Blue Room” or any “calm down space” or any
         room used for seclusion or to isolate students at FHGS from 2015 to 2022
        Any redacted restraint and seclusion documents concerning Rebecca Armitage at any
         time during her career.
Petitioner has made clear that he agrees to the redaction of any student names from any of the
documents. He is also willing to have the court conduct an in camera review and redact
additional content from the forms.
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       The District’s position is that all requests are for “student records,” and that such
records are categorically and wholly exempt from production under the Public Records
Act under 1 V.S.A. § 317(c)(11) and further that the forms may not be provided in
redacted form with names and other identifying information blacked out.

                                Legal and administrative framework

        Title 16 of the Vermont Statutes Annotated concerns Education. Part I addresses
Administration, and within that Part, Chapter 3 is about the State Board of Education,
with Subchapter 1 establishing General Provisions. In that Subchapter, 16 V.S.A. § 164
establishes the General Powers and Duties of the State Board, including rulemaking
under Title 3, chapter 25: “Adopt rules pursuant to 3 V.S.A. chapter 25 to carry out the
powers and duties of the Board as directed by the General Assembly, within the
limitations of legislative intent.” 16 V.S.A. § 164 (7).

        The State Board has adopted a Series 4500 Rule entitled “Use of Restraint and
Seclusion in Schools (4500),” Rule CVR 22-000-036, which became effective August 16,
2011.6 Its purposes are to “create and maintain a positive and safe learning environment
in schools; promote positive behavioral interventions and supports in schools; and ensure
that students are not subjected to inappropriate use of restraint or seclusion.” It includes
both prohibitions and permissible uses of various forms of restraint and seclusion, which
are defined in detail in Section 4502.

         Section 4503 is entitled “Reporting the Use of Restraint and Seclusion.”
         Section 4503.1 requires any person who imposes a restraint or seclusion to report
it to the School Administrator: “Any person who imposes a restraint or seclusion shall
report its use to the school administrator as soon as possible, but in no event later than the
end of the school day of its use.”
         Section 4503.2 requires the school administrator to provide prompt verbal notice
to the student’s parents and also written notice with specified content within 24 hours.
         Sections 4503.3 and 4503.4 specify particular circumstances in which reports are
required to be provided by the school administrator to the superintendent, and by the
superintendent to the Commissioner of the Department of Education.

            Section 4505 is entitled “Documentation.” It provides in full as follows (shown in
italics):

            Each school shall maintain written records of each use of restraint and
            seclusion. The records shall be maintained by the school administrator and shall
            include the following:
            a. The name, age, gender and grade of the student;

6 It is also available at https://education.vermont.gov/sites/aoe/files/documents/edu-state-board-rules-series-4500.pdf

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23-CV-03778 Curtis Hier v. Slate Valley Unified School District
         b. The date, time and duration of the restraint or seclusion;
         c. Any injuries, death or hospitalization to student or staff resulting from the use
         of restraint or seclusion;
         d. The location where the restraint or seclusion occurred;
         e. The precipitating event[s] leading up to the restraint or seclusion;
         f. A list of school personnel who participated in the application, monitoring and
         supervision of the student while restrained or secluded;
         g. The type of restraint or seclusion used;
         h. The reason for the restraint or seclusion;
         i. A description of all the interventions used prior to the application of the
         restraint or seclusion;
         j. Whether the student has a behavioral intervention plan and/or individualized
         education plan, Section 504 plan or educational support plan; and
         k. The date notification was provided to the student's parents.
       Both parties to this case refer to the documents at issue as “4500 forms.” No ‘form’ has
been submitted as an exhibit, but the court infers that a standard format used for reporting
purposes has been created, that it calls for the above information, and that it is this document as
completed that Petitioner seeks with the student’s name redacted.

                                                      Analysis
         The Public Records Act begins with a Statement of Policy as follows:

         (a) It is the policy of this subchapter to provide for free and open examination of
         records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers
         of government are trustees and servants of the people and it is in the public
         interest to enable any person to review and criticize their decisions even though
         such examination may cause inconvenience or embarrassment. All people,
         however, have a right to privacy in their personal and economic pursuits, which
         ought to be protected unless specific information is needed to review the action of
         a governmental officer. Consistent with these principles, the General Assembly
         hereby declares that certain public records shall be made available to any person
         as hereinafter provided. To that end, the provisions of this subchapter shall be
         liberally construed to implement this policy, and the burden of proof shall be on
         the public agency to sustain its action.
         (b) The General Assembly finds that public records are essential to the
         administration of State and local government. . . .Public records document the
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23-CV-03778 Curtis Hier v. Slate Valley Unified School District
         legal responsibilities of government, help protect the rights of citizens, and
         provide citizens a means of monitoring government programs and measuring the
         performance of public officials. Public records provide documentation for the
         functioning of government and for the retrospective analysis of the development
         of Vermont government and the impact of programs on citizens.

1 V.S.A. § 315.
         The exemption for student records, 1 V.S.A. § 317(c)(11), reads as follows:
“(c) The following public records are exempt from public inspection and copying: . . .
(11) Student records, including records of a home study student, provided, however, that such
records shall be made available upon request under the provisions of the Federal Family
Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.” 7
        As stated in § 315 (a) quoted above, an agency declining to provide its records has the
burden of proof to sustain its action in denying a request to provide records, including the burden
of demonstrating that a record is covered by an exemption. Rutland Herald v. Vermont State
Police, 

. The Vermont Supreme Court has been consistent in upholding “the
strong public policy favoring access to public documents and records.” Sawyer v. Spaulding,

. It has repeatedly held that “exceptions to disclosure are construed strictly
against the custodian of the records, and we resolve any doubt in favor of disclosure.” 

       The only Vermont Supreme Court decision related to the “student records” exemption is
Caledonian-Record Pub. Co., Inc. v. Vermont State Colleges, 

, in which the Court
upheld the withholding of college student disciplinary records as “student records” exempt from
disclosure under § 317(c)(11) of the Public Records Act. Id. at ¶ 9. In that case, the records
sought were those of disciplinary proceedings for misconduct of individual students. The
decision does not address the issue of redaction of student identity information from forms
created for a purpose related to oversight of compliance with school policy.8
        The District argues that the case stands for the proposition that any record that includes
the identity of a student is an exempt “student record,” and that such records are “categorically
exempt” without the possibility of redaction. Mr. Hier argues that the records are required and
maintained not so much to have a record about the student as to gather and maintain information

7 The parties acknowledge that Mr. Hier is not eligible to make a request under FERPA, the Federal Family

Educational Rights and Privacy Act, 20 U.S.C. § 1232g and that the Vermont Public Records Act is the exclusive
pertinent law.
8 Petitioners in the Caledonian-Record case also sued to obtain daily security logs maintained by Lyndon State

College Department of Campus Security, which the College apparently provided in response to the suit while
withholding records of disciplinary proceedings involving individual students. Many incidents in a campus security
log would presumably include student names. It is unknown whether student names and/or other identifying facts
were redacted from the security logs provided to the Petitioner. In any event there was no need for the Court in the
Caledonian-Record opinion to address the use of redaction in providing records and it did not.


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23-CV-03778 Curtis Hier v. Slate Valley Unified School District
about patterns within the school of the frequency and use of restraint and seclusion practices, that
such records should be provided under the Public Records Act, and that the names of students
can be redacted to protect their privacy.
        Rule 4500 shows that the Department of Education created a statewide policy with
respect to the use of restraint and seclusion in schools with the purposes described in the Rule: to
create a safe learning environment, promote positive behavioral interventions, and “ensure that
students are not subjected to inappropriate use of restraint or seclusion.” In conjunction with
establishing the policy, it included in the Rule provisions for systematic reporting of all
incidents. It specified the required content of such incident reports and which reports were to be
submitted to which school administrators, district superintendents, and the Commissioner. This
indicates a purpose of data gathering through the use of incident reports for the purpose of
oversight and management of implementation of the policy.
        The Vermont Supreme Court has ruled that in analyzing application of an exemption to
the Public Records Act, the focus should be on the content of the documents at issue. Rutland
Herald v. Vermont State Police, 

. Although the Rule 4500 reporting form calls
for student names and verification that parents were notified, most of the information called for
on the form has to do with the factual circumstances under which restraint or seclusion was used:
precipitating events, interventions used prior to the use of restraint or seclusion, the location, the
type of restraint or seclusion used, the reason for use, the school personnel involved, and any
injuries to anyone. The content sought focuses on the event and how it was handled rather than
on the individual student. School administrators can compare this information with the details of
prohibition and use requirements set forth in Rule 4500--Section 4501 on “Prohibitions,” and
Section 4502 on “Permissible Use of Restraint and Seclusion”--to aid in determining compliance
with the policy.9
        In cases involving a mix of personal information with information that is of public
interest related to the functioning of the government, the Vermont Supreme Court has engaged in
balancing the public interest in disclosure against the privacy interests of individual persons.
Trombley v. Bellows Falls Sch. Dist., 

. (1993). Even when a record is
deemed “personal,” the Court has stated that it must “balance the public interest in disclosure
against the harm to the individual.” Rutland Herald v. City of Rutland, 

.
       It appears that the primary objective of the forms and reporting requirements is effective
monitoring to implement the State’s restraint/seclusion policy rather than maintaining a record of
individual student experience or performance. The transparency policy of the Act would be
served by making such records available as long as individual privacy of students is protected.
Without access to the only government records documenting compliance with its detailed policy

9 Section 4502 is lengthy and sets forth numerous specific details on permissible uses and limitations in subsections:

        4502.1 Permissible Use of Physical Restraint
        4502.2 Permissible Use of Seclusion
        4502.3 (No title, but subsections a-k and section 4502.3.1)
        4502.4 Physical restraint or seclusion shall only be imposed. . .
        4502.5 Physical restraint or seclusion shall be terminated as soon as. . .
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on the use of restraint and seclusion in schools, the public has no access to information collected
by the government on whether Rule 4500 policy is actually being responsibly implemented.
        The case squarely raises the issue of whether a government document that contains
information related to the effective functioning of schools that also contains student identity
information must be provided under the Act and whether redactions to prevent the disclosure of
the identity of students involved may be used consistently with the Act. The District’s reliance
on Caledonian-Record for the principle that any school record with a student’s name on it is a
“student record” and is wholly exempt from public availability without the use of redaction is not
supported by that case. The District has not provided other authority for the proposition that
redaction may not be used to exclude exempt information on a document that otherwise would
be subject to public access.
        Redaction is a commonly used technique for protecting private information in documents
that are otherwise open to the public. Indeed, in the District’s August 17, 2023 letter to Petitioner
denying Request II, it is stated that emails requested were provided with redactions of student
identity information, and it cites 1 V.S.A. § 317(c)(11) in part as the basis for the redactions.
District’s Exhibit A5 (page 1) attached to Exhibit A in support of District’s Motion for
Summary Judgment. The District apparently redacted names of students in emails on the basis of
§ 317(c)(11) while considering the Forms 4500 categorically exempt and not subject to redaction
under the same statutory provision.
        In Rutland Herald v. City of Rutland, the Vermont Supreme Court noted “that redaction
could be appropriate” in a case involving “records demonstrating how the police department
responds to workplace infractions, including its response to a possible pattern of inappropriate
workplace behavior,” a subject on which the public has an interest in knowing whether public
servants are carrying out their duties. Id. at ¶¶ 35-37. On the possibility of redaction, the Court
specifically referenced with apparent approval a Rhode Island Supreme Court case in which that
Court ordered the release of documents related to the management of a law enforcement agency
“with certain redactions.” Id.
        The cases cited above show the Vermont Supreme Court’s record of favoring public
disclosure of government records, as called for in the Act, and engaging in a balancing test rather
than categorically exempting materials of public interest concerning the functioning of
government due to the inclusion of some personal identity information. The Act’s policy of
promoting transparency of governmental functioning strongly supports making the forms
available as long as personal student information is not disclosed.
        Therefore, the court concludes that the District is required to provide the 4500 Forms and
other information requested, but with redactions to remove the content that appears in bold
below, which would or potentially could lead to identification of individual students:
         a. The name, age, gender and grade of the student;

       j. Whether the student has a behavioral intervention plan and/or individualized
education plan, Section 504 plan or educational support plan
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       Names of any student anywhere on any form and any information on the form that
could be used to identify a particular student, including the names of any parent or
guardian of a student.

                                                         Summary

     For the foregoing reasons, the District’s Motion for Summary Judgment is denied, and
summary judgment is granted to Petitioner pursuant to V.R.C.P. 56 (f) as follows:

        Petitioner is entitled to receive from the Fair Haven Grade School, in redacted form, the
following documents:
        --Forms 4500 from January to April 2021,
        --Forms 4500 from 2015 to 2022 in which the “Blue Room” or any “calm down space” is
referenced, and
        --Restraint and seclusion documents concerning Rebecca Armitage at any time during her
career.
        All documents shall be redacted to remove the names, ages, and gender of any students;
whether any student had a behavioral intervention plan and/or individualized education plan,
Section 504 plan or educational support plan; and any information on any form that could be
used to identify a particular student, including the names of any parent or guardian of any
student.

        However, performance under the judgment is stayed pending the expiration of the time
for appeal to the Vermont Supreme Court so that disclosure will not occur prior to a final ruling
in the event of an appeal.


Electronically signed December 4, 2023 pursuant to V.R.E.F. 9 (d).




Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned




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