95-004496RX John W. Hatton vs. Florida State University Status: Closed DOAH Final Order on Wednesday, August 14, 1996.

Summary: Rule challenge dismissed for mootness when rule replaced.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN HATTON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4496RX

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

___________________________)

FINAL ORDER

This cause came on for consideration upon Florida State University's

(FSU's) Suggestion of Mootness. Oral argument was heard by telephonic

conference call on July 29, 1996. FSU was required to file supplemental

documentation, and Petitioner was given until August 7, 1996 to respond in

writing.

FINDINGS OF FACT

1. FSU has substantially amended the challenged Rule 6C2-3.004 F.A.C.

2. The new rule was filed with the Department of State on June 28, 1996

and became effective on July 18, 1996.

3. Petitioner had appealed the Lower Student Court ruling which had found

him responsible for violation of old Rule 6C-2.3004(9)(c)2. The Student Supreme

Court issued an order remanding the case back to the Lower Student Court for a

new hearing, which order on its face shows that Petitioner is subject to

prosecution under the old rule, which is here under challenge. However, FSU's

counsel represented within the Suggestion of Mootness that, "This new proceeding

[before the Lower Student Court] will be governed by the new rule. Thus, the

Petitioner will not be effected (sic) by nor can he in the future be effected

(sic) by the old rule which is no longer in existence."

4. Petitioner's response to the Suggestion of Mootness does not disagree

with any of FSU's representations in the Suggestion of Mootness and, " . . .

respectfully requests the Hearing Officer to render an Order dismissing this

matter subject to the condition that if Respondent reverses its intentions to

proceed against Petitioner under the new rule, and instead proceeds against

Petitioner under the challenged rule (the old rule) then this matter would be

considered without prejudice permitting Petitioner opportunity to renew his

challenge to the old rule."

CONCLUSIONS OF LAW

5. It appearing upon representations of FSU counsel as an officer of the

court that there is not going to be any prosecution of Petitioner under the

challenged/old rule, this rule challenge is, in fact, moot. Moreover, it is

clear that Petitioner no longer has standing to challenge the old rule if he is

no longer affected in any way by the rule under challenge.

6. Therefore, it is not necessary for the undersigned to explore how

Petitioner could be prosecuted substantively for a violation under a rule not in

effect when the alleged violation occurred, nor is it necessary to determine

what portions of the new rule are procedural only.

7. No ruling on the merits of the rule challenge herein is made here. If

Petitioner ever is prosecuted under the new rule and if he files a rule

challenge at that time, applicable law will govern.

Based on the foregoing, it is

ORDERED that this cause is dismissed as moot.

DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August, 1996.

COPIES FURNISHED:

Joseph R. Gillespie

200 Lakeview Drive

Apartment 201

Ft. Lauderdale, Florida 33326-1001

Claire D. Dryfuss, Esquire

OFFICE OF THE ATTORNEY GENERAL

PL-01 The Capitol

Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

A Party who is adversely affected by this final order is entitled to judicial

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of the notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the District Court of Appeal in the Appellate District where the party

resides. The notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

FLORIDA STATE UNIVERSITY, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

CASE NO. 95-4254

vs. DOAH CASE NO. 95-4496RX

JOHN W. HATTON,

Appellee.

____________________________/

Opinion filed April 16, 1996.

Petition for review of non-final administrative action.

Claire D. Dryfuss, Assistant Attorney General, Tallahassee, for Appellant.

Michael Alex Wasylik, Washington, D.C., for Appellee.

SHIVERS, Senior Judge.

The Florida State University (the "University" or "FSU") seeks review of a

non-final administrative order modifying a prehearing subpoena to require the

University to produce, at hearing, "[f]ormal orders applying to all Student

Conduct Code cases brought against any FSU student over the most recent two

years, with any and all information by which a student could be identified

redacted from the orders." Finding that the hearing officer abused his

discretion in tailing to allow the University to substitute summaries of the

requested information for the final orders, we reverse.

Respondent, John Hatton (the "Respondent" or "Hatton"), is a student who

has brought a petition pursuant to Section 120.56, Florida Statutes, seeking an

administrative determination of the validity of an existing rule (Rule 6C2-

3.004, Florida Administrative Code 1/ ). Hatton is not challenging the

University's disciplinay rule as applied to him in pending, collateral

proceedings. 2/ Rather, in this rule challenge petition, Hatton asserts, inter

alia, that the existing rule is (on its face) an "invalid exercise of delegated

legislative authority" devoid of standards governing the selection of penalties,

which are imposed "based on the facts and circumstances of each case."

Within this context, on November 20, 1995, the hearing officer issued

subpoenas directing the University to produce (at hearing nine days later) all

documents relating to disciplinary actions brought against any student during

the period from March 1988 to the date of the subpoenas. The University

promptly moved to quash the subpoenas, primarily on the ground of

confidentiality. The hearing officer then entered an order requiring the

University to produce (inter alia), at hearing the next day, "[f]ormal orders

applying to all Student Conduct Code cases brought against any FSU student over

the most recent two years, with any and all information by which a student could

be identified redacted from the orders." The University immediately filed its

petition for review in this court.

In its petition the University contends that the documents sought to be

produced are confidential pursuant to section 228.093, Florida Statutes (1993).

The University maintains that the student orders constitute "records" and

"reports" within the definition contained in section 228.093(2)f because they

are incorporated into each student's cumulative record folder, and contain the

student's name, social security number, and verified reports of serious or

recurrent behavior patterns, as well as other identifying data.

The University also argues that the privacy interests of the involved FSU

students are protected by section 228.093(2)(f). Pursuant to section

228.093(3)(d), the release of confidential student records without the written

consent of the student, the student's parent or his guardian is strictly

prohibited. Further, Section 228.093(d)10.a allows for the release of these

records only to a "court of competent jurisdiction in compliance with an order

of that court or, the attorney of record pursuant to a lawfully issued subpoena,

upon the condition that the pupil or student and his parent are notified of the

order or subpoena in advance of compliance therewith by the educational

institution or agency." Here, it is undisputed that Hatton is not represented by

an attorney in the administrative proceedings below.

Section 228.093(3)(d), Florida Statutes, provides, in pertinent part, as

follows:

(d) Right of privacy. - -Every pupil or student shall have a

right of privacy with respect to the educational records

kept on him or her. Personally identifiable records or

reports of a pupil or student, and any personal information

contained therein, are confidential and exempt from the

provisions of s. 119.07(1). No ... institution of higher

education in the State University System shall permit the

release of such records, reports, or information without the

written consent of the pupil's or student's parent or

guardian, or of the pupil or student himself if he or she is

qualified as provided in this subsection, to any individual,

agency, or organization. ... However, personally

identifiable records or reports of a pupil or student may be

released to the following persons or organizations without

the consent of the pupil or the pupil's parent:

* * *

10.a. [A court of competent jurisdiction] in compliance

with an order of that court or the attorney of record

pursuant to a lawfully issued subpoena, [upon the

condition that the pupil or student and his parent are

notified of the order or subpoena in advance of

compliance therewith by the educational institution or

agency.]

[Emphasis supplied]. The records which are subject to this right of privacy are

defined in section 228.093(2), in pertinent part, as follows:

(e) "Records" and "reports" mean any and all official

records, files, and data directly related to pupils and

students which are created, maintained, and used by public

educational institutions, including all material that is

incorporated into each pupil's or student's cumulative

record folder and intended for school use or to be available

to parties outside the school or school system for

legitimate educational or research purposes. Materials

which shall be considered as part of a pupil's or student's

record include, but are not necessarily limited to:

identifying data, including a student's social security

number; academic work completed; level of achievement

records, including grades and standardized achievement test

scores; attendance data; scores on standardized

intelligence, aptitude, and psychological tests; interest

inventory results; health data; family background

information; teacher or counselor ratings and

observations; verified reports of serious or recurrent

behavior patterns; and [any other evidence, knowledge or

information] recorded in any medium, including, but not

limited to, handwriting, typewriting, print, magnetic tapes,

film, microfilm, and microfiche, and [maintained and used by

an educational agency or institution or by a person acting

for such agency or institution]. However, the terms

"records" and "reports" do not include:

* * *

6. Other information, files or data which do not

permit the personal identification of a pupil or student.

[Emphasis supplied].

The right of privacy set forth in Section 228.093(3)(d), Florida Statutes,

attaches to records or reports which permit the personal identification of a

pupil or student. 3/ We find that the formal orders regarding FSU students

are confidential records and reports within the meaning of F.S. sec.

228.093(3)(d)1 because they contain identifying information about the subject

student and other students who are accomplices, witnesses and victims.

Respondent does not contend that the formal orders are not confidential

records and reports. Rather, he argues that the documents can be edited to

delete all identifying information from them, thus rendering the edited product

unprotected.

This argument assumes that the editing and release of edited reports and

records is permissible pursuant to section 228.093(3)(d). However, there is

only one provision in section 228.093 - Section 228.093(3)(a)2. - which provides

for partial release of information contained in confidential records and

reports. Section 228.093(3)(a)2. does not provide for the release of edited

information regarding persons other than the student requesting the release.

Rather, it provides, in pertinent part, as follows:

(a) Right of access

2. Such parent, guardian, pupil, or student shall have

the right, upon request, to be shown any record or report

relating to such pupil or student maintained by any

public educational institution. When the record or

report includes information on more than one pupil or

student, the parent, guardian, pupil, or student [shall be

entitled to receive, or be informed of, only that part of

the record or report which pertains to the pupil or

student who is the subject of the request].

[Emphasis supplied]. Thus, even under Section 228.093(3)(a)2., only "that part

of the record or report which pertains to the pupil or student who is the

subject of the request" is permitted to be released.

Further, such excised portions of confidential records and documents can

only be released to the subject student, or to the specified persons and

organizations set forth in section 228.093(3)(d)1.-12. The relevant entities to

whom such release is permitted, upon prior notification to the student and his

parent, are a "court of competent jurisdiction" or an "attorney of record." See

Section 228.093(3)(d)10.a., Florida Statutes.

In this case, the order was not entered by a court, but by a hearing

officer of the Division of Administrative Hearings. While the hearing officer

is a quasi-judicial of officer of a quasi-judicial forum, neither the hearing

officer nor DOAH is a "court of competent jurisdiction." Cf. Human Rights

Advocacy Comm. v. Lee County School Board, 457 So.2d 522 (Fla. 4th DCA

1984)(district human rights advocacy committee not included in specified groups

authorized to receive confidential student information). Further, Respondent is

represented by a qualified representative who is not an attorney in the

proceedings below. Thus, release to that individual is not authorized pursuant

to section 228.093(3)(d)10.a.

Lastly, Respondent argues that the confidentiality provisions of section

228.093(3)(d) are defeated by section 120.53(2)(a), Florida Statutes, which

provides that "agency orders" are subject to public inspection. This argument

is similarly without merit. Cf. Marston v. Gainesville Sun Pub. Co., Inc.,

341 So.2d 783 (Fla. 1st DCA 117), Cert. denied, 352 So. 2d 171 (Fla. 1977)

(consistent with policy of Family Educational and Privacy Rights Act of 1974,

where proceedings of student honor court are transcribed in documents designated

by rule as limited access records pursuant to section 239.77, Florida Statutes,

newspaper was not allowed access to such proceedings on the theory that they

were "public meetings"). Section 228.093(3)(d), Florida Statutes, specifically

exempts these records from the provision of the Public Records Act, section

119.07(1), Florida Statutes. As stated by this court, "[i]t is a fundamental

principle of law that when general and specific enactments are incongruous, the

specific statute controls." Tallahassee Democrat, Inc. v. Florida Bd. of

Regents, 314 So.2d 164, 166 (Fla. 1st DCA 1975) citing Adams v. Culver, 111

So.2d 665 (Fla. 1959); Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA

1962)

At the prehearing conference held (in lieu of final hearing) on November

29, 1995, the University supplied to Hatton and proffered to the hearing officer

a summary of the types of offenses and sanctions which had been imposed in the

last two years in student code hearings. The University indicates that these

summaries are routinely prepared by the University and made available to the

public. In this case, Respondent's interest in obtaining the confidential

documents is outweighed by the substantial privacy interest in the documents

which the legislature has accorded to the subject students and their parents,

and the interest of The University in avoiding penalties which may ensue from

disclosure. Cf. Zaal v. State of Maryland, 602 A. 2d 1247 (Md. 1992) (in

determining whether confidential student records shall be disclosed, trial judge

must conduct balancing test in which student's privacy interest is weighed

against genuine need of party requesting information). The use of summaries of

the information in place of the indicated 532 cases which the documents

represent would both provide Hatton with the essential information he seeks and

protect the substantial, competing interests of the students and of the

University. Cf. Naglak v. Pennsylvania State University, 133 F.R.D. 18 (M.D.

Penn. 1990)(approving submission of requested student information - protected by

federal Family Educational and Privacy Right Act - in statistical, summary

form).

Based upon the foregoing, we find that the hearing officer abused his

discretion in requiring the University to produce redacted, confidential student

records. Accordingly, the order under review is REVERSED and REMANDED with

instructions that the hearing officer allow the University to present

statistical information in lieu of the requested documents.

BARFIELD and ALLEN, JJ., CONCUR.

ENDNOTES

1/ Rule 6C2-3.004 provides for the imposition of certain enumerated sanctions

upon students found responsible for violating University rules.

2/ The University states that the Respondent is currently involved in an

appeal, through the University's applicable procedure, of disciplinary action

which was taken against him. The Chapter 120 action from which this petition

arose does not address the validity of the rule applied to Hatton. See Section

120.57(5), Florida Statutes (exempting from formal administrative proceedings

"any proceedings in which the substantial interests of a student are determined

by the State University System.")

3/ The Florida statute contains no definition of "data which permit[s] the

personal identification of a pupil or student." However, this court finds

guidance in a definition applicable to the federal counterpart of this statutory

provision, the Family Educational and Privacy Rights Act of 1974, 20 U.S. C.A

sec. 1232g, as amended (1994). In 32 CFR sec. 99.3, "personally identifiable

information" is defined as follows:

Sec. 99.3 * * *

"Personally identifiable information" includes, but is

not limited to:

(a) The student's name;

(b) The name of the student's parent or other family

member;

(c) The address of the' student or student's family;

(d) A personal identifier, such as the student's

social security number or student number;

(e) [A list of personal characteristics] that would make

the student's identity easily traceable;

(f) [Other information that would make the student's

identity easily traceable].

[Emphasis supplied]. Applying this definition to the formal orders regarding

FSU students, it is apparent that they are "confidential records and reports"

within the meaning of F.S. sec. 228.093(3)(d)

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable Ella Jane P. Davis, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

JOHN HATTON,

vs. CASE NO. 95-4254

DOAH CASE NO. 95-4496RX

FLORIDA STATE UNIVERSITY,

The attached opinion was rendered on April 16, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 2nd day of May,

1996.

___________________________________________

(seal) Jon S. Wheeler

Clerk, District Court of Appeal of Florida,

First District