H. B. 4245
(By Delegate Gillespie)
[Introduced February 3, 1998; referred to the
Committee on Education then Finance.]
A BILL to amend chapter eighteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-b, relating
to allowing parents,
guardians and custodians
access to
school records of children; providing procedures and time
frame for access; allowing civil actions for enforcement;
providing criminal penalty; and making state board of
education responsible for costs.
Be it enacted by the Legislature of West Virginia:
That chapter eighteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-b, to read
as follows:
ARTICLE 5B. PARENTAL FREEDOM OF INFORMATION.
§18-5B-1. Definitions.
As used in this article:
(1) "Custodian of the school records" means the principal,
or other chief administrative officer if there is no principal,
of the public school in which the child is enrolled;
(2) "Instructional materials" means textbooks, audio-visual
materials, manuals, journals, films, tapes and other
supplementary materials regardless of physical form or
characteristics;
(3) "Medical records" means information regarding the
medical health of a student and includes any guidance or
counseling and psychological or psychiatric testing or treatment;
(4) "Person" means any natural person;
(5) "Public school" means any instructional facility which
is under the general supervision of the state board of education;
(6) "School records" means instructional materials
, medical
records and standardized achievement tests
; and
(7) "Standardized achievement test" means any common test
administered during the current or previous school year
throughout a school, local education agency, state or nation, and
includes the individual test results of a child, as well as any
statistical comparison data regarding test results of the child's
age or grade level.
§18-5B-2. Inspection and copying.
(a) Every parent, guardian or custodian
has a right to a
copy and to inspect school records which relate to his or her
child or other student over which the person is a guardian or custodian.
(b) A request for copies or to inspect school records
which
relate to the person's child or other student over which the
person is a guardian or custodian
shall be made directly to the
custodian of the school records
where the child is enrolled.
(c) The custodian of the school records
shall furnish the
copies requested to the person making the request.
If only
access to school records is requested, the custodian of the
school records
shall furnish
the person a proper and reasonable
opportunity for inspection and examination of the records in his
or her office and reasonable facilities for making memoranda or
abstracts therefrom, during usual business hours. The state
board of education
may make reasonable rules necessary for the
protection of the records and to prevent interference with the
regular operation of public schools. If the school records
requested exist in magnetic, electronic or computer form, the
custodian of the school records
shall make the copies available
on magnetic or electronic media, if requested.
(d) All requests for school records must state with
reasonable specificity the information sought. The custodian of
the school records
, upon demand for records made under this
article, shall as soon as is practicable but within a maximum of
thirty calendar days:
(1) Furnish copies of the requested information, if copies
are requested;
(2) Advise the person making the request of the time and
place at which he or she may inspect the materials, if the right
to inspect was requested; or
(3) Deny the request stating in writing the reasons for the
denial.
(e) Any denial shall indicate that the responsibility of the
custodian of the school records
to produce the requested records
is at an end, and shall advise the person requesting the records
of the opportunity to institute proceedings for injunctive or
declaratory relief in the circuit court in the county where the
public school
is located.
(f) The state board of education
is responsible for the cost
of all copies furnished under this article and all other costs
associated with the custodian of the school records
complying
with this article, except any penalty imposed under section four
of this article.
§18-5B-3. Enforcement.
(a) In the event that the custodian of the school records
fails to comply with the provisions of subsection (d), section
two of this article or denies the request for school records, the
person making the request may institute proceedings for
injunctive or declaratory relief in the circuit court in the
county in which the public school is located.
(b) In any suit filed under subsection (a) of this section,
the court has jurisdiction to enjoin the custodian from withholding records and to order the production of any records
improperly or negligently withheld from the person seeking
disclosure. The court shall determine the matter de novo and the
burden is on the custodian to sustain his or her action. The
court, on its own motion, may view the records in controversy in
camera before reaching a decision. Any custodian of school
records found to be in noncompliance with the order of the court
to produce the documents or disclose the information sought, may
be punished for contempt of court.
(c) No suit may be brought under the provisions of this
article more than two years from the earlier of:
(1) The last day of the thirty-day period established in
subsection (d), section two of this article; or
(2) The date the person received a denial sent pursuant to
subsection (d), section two of this article.
§18-5B-4. Violation of article; penalties.
Any custodian of the school records
who willfully violates
any provision of this article is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars, or be confined in the
county or regional jail for not more than ten days, or, both
fined and confined.
§18-5B-5. Attorney fees and costs.
Any person who is denied access to school records requested
under this article and who successfully brings a suit filed pursuant to section three of this article is entitled to recover
his or her attorney fees and court costs from the custodian of
the school records
that denied him or her copies or access to the
records.
NOTE: The purpose of this bill is to allow parents,
guardians and custodians
access to school records of their
children. Procedures and a time frame for access are provided
and civil actions for enforcement are authorized. It also
provides a criminal penalty for noncompliance. It makes the
state board of education responsible for costs associated with
providing copies and allowing access.
This article is new; therefore, strike-throughs and
underscoring have been omitted.