Preview
I
DALLAS COUNTY
10/5/2015 12:00:00 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALLY AND AS IN THE DISTRICT COURT
NEXT FRIEND TO JOHN DOE II, A MINOR
Plaintiffs
VS.
THE ANDERSON PRIVATE SCHOOL,
WILLIAM C. ANDERSON, INDIVIDUALLY, DALLAS COUNTY, TEXAS
LEVONNA Cc ANDERSON,
INDIVIDUALLY, “ALEXANDER A
ANDERSON, INDIVIDUALLY, RIPLEY
ENTERTAINMENT, _ INC., and JIM
PATTISON U.S.A., INC. 44TH-B JUDICIAL DISTRICT
DEFENDANTS’ FIRST AMENDED BRIEF ON FERPA AND
OTHER STUDENT PRIVACY RELATED MATTERS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendants, THE ANDERSON PRIVATE SCHOOL. (School),
WILLIAM C. ANDERSON, _ INDIVIDUALLY, LEVONNA C. ANDERSON,
INDIVIDUALLY, ALEXANDER A. ANDERSON, INDIVIDUALLY, (collectively,
Defendants)’ RIPLEY ENTERTAINMENT, INC., and JIM PATTISON U.S.A., INC. and files
this First Amended Brief on FERPA and Other Student Privacy Related Matters (Brief) and in
support respectfully shows the Court the following:
I. Evidence Relied Upon”
1.0 In support of this Brief, Defendants rely on all documents on file with this Court
that are incorporated by reference as if set out verbatim herein. In addition, Defendants rely on
1 Although William C. Anderson, LeVonna C. Anderson, and Alexander A. Anderson are not, in their
individual capacities as named in this lawsuit, authorized to release the School’s records, because the
Plaintiffs’ Motion to Compel names all Defendants and does not direct specific discovery requests to any
patticular responding party, William C. Anderson, LéVonna C. Anderson, and Alexander A. Anderson
join in this Brief with the Defendant School. See Pls.’ First Amd. Mot. to Compel, Preamble (naming the
School and all individual Anderson defendants).
? Because discovery has only just begun in this case, Defendants provide exhibits to their Brief to assist
the Court in evaluatingthe Plaintiffs’ requests in context with evidence relevant to the Court’s analysis.
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page 1 of11
the evidence attached to this response and incorporated into this Brief as if set out verbatim
herein:
Exhibit 1 The Anderson Private School Privacy Policy and Supporting Affidavit
(Privacy Policy)
Exhibit 2 Affidavits of J. Smiths (Parents of Anderson School Students who wish to
protect their own and their children’s identities and confidential School
information from disclosure)
Exhibit 3 Affidavit, William C. Anderson of The Anderson Private School
Exhibit4 Affidavit of Linda Delamare
Exhibit 5 TDFPS Correspondence Dated February 2, 2015 and April 2, 2015 (TDFPS
Com)?
Exhibit 6 Defamation Letter (Redacted)
II. Factual and Procedural Background
2.0 Plaintiffs’ Original Petition alleges the sexual assault of a child, allegations which
the Defendants emphatically deny. Given the egregious and sensitive nature of the allegations the
Plaintiffs have properly used fictitious identities to protect the alleged sexual assault victim.
These allegations are also egregious and sensitive to the Defendants given the fact that three
separate and. independent investigative agencies—The Grand Prairie Police Department, Cook
Children’s Hospital, and The Texas Department of Family and Protective Services investigated
Plaintiffs’ underlying allegations of sexual assault and concluded that the alleged sexual assault
did not occur. Y et, all Defendants
have been identified by name, a bell that cannot be unrung and.
that has and will continue to have devastating effects on the individual defendants’, who are all
educators and whose life’ s work and livelihood hang in the balance.. And if that is not damaging
enough, Plaintiffs now seek to compel production of the names, addresses and telephone
numbers of all of the School’s students from January 1, 2009, more than five years before the
alleged, single incident, to the present. See generally Pls.’ First Amend. Pet. (filed June 24,
3 Pursuant to the Court’ s Protective Order, John Doe II’s identity has been concealed on the February 2,
2015 correspondence to AlexanderA. Anderson.
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
2 of 11
2015); Pls.’ First Amd. Mot. to Compel and Strike Obj. (Pls.’ First Amd. Mot. to Compel), Ex. D
E (indicating that three independent investigators concluded
that no sexual assault occurred and
that even John Doe II’s own Mother is likely going to be a witness favorable to the Defendants);
Ex. 5, TDFPS Com. (stating TDFPS has “determined after the investigation that a child was not
abused, neglected or exploited while in [the alleged abuser’s] care” and that TDFPS determined
that the alleged abuser “had no role and the investigation
was closed.”); see also Tex. R. Evid.
901(7) (containing hearsay exception for “public record, report, statement or data compilation . .
. is from the public office
here items of this nature are kept”).
21 Shortly after receiving notice of the lawsuit, the Defendants, pursuant to Texas
Civil Practice and Remedies Code Section 73.055, served a defamation notice on Plaintiff. See
Defs.’ Amd. Ans. To Pls.’ Mot. to Compel and Strike Obj., Ex. A, pp 1-2 (Westfall Aff.); Ex. 6.
2.2 The parties are in the initial stages of discovery and it is in response to Plaintiffs’
discovery requests that this Brief is filed. Despite Plaintiffs’ failure to name any experts or
provide any medical reports (both items necessary to prove Plaintiffs’ claims) in response to the
Defendants’ Request for Disclosure, Plaintiff seeks, among other items, “[a] complete roster of
all students of the [School] with contact information (name, address and telephone numbers) for
their parents” and “[alny demand letters or complaints to the [School] alleging improper
treatment
of a student.” See Pls.’ First Amd. Mot. to Compel. Ex. A, p. 12 Jitems 11 & 12. In
addition to discovery, Plaintiffs sought, and the Court signed, a Protective Order in this case
restricting the discussion of the Plaintiffs’ identities and expressly providing that
No party may divulge Plaintiffs’ identities to anyone other than a Qualified
Person [,defined by the protective Order as the judge, a party to the action,
attomeys and their agents, and persons authorized by written order of a court
specific to that person,] without a written order of the [Clourt; provided, however
nothing herein restricts the use of the identities when seeking information through
proper discovery, but shall apply to discovery responses submittedto the Court.
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
3 of 11
See Prot. Ord. (signed Sept. 2, 2015). Concurrent with the Plaintiffs seeking this Protective
Order, Plaintiff John Doe I, on his own without counsel and on information and belief outside of
the discovery process, contacted
other students and parents of the School’s other students—third
parties that by Plaintiffs’ own pleadings cannot have information related to the proof of
Plaintiffs’ allegations—and not only interrogated them about their relationship with the school
but openly discussed the allegations of abuse underlying Plaintiffs’ claims and accused a School
faculty member of being a rapist. See Exs. 3,4. John Doe I's defamatory actions have caused
the School to suffer financial losses because some Parents have removed their children from the
school, not because they believe the allegations, but because they do not want to be drawn into
Plaintiffs’ lawsuit. See Ex. 2.
2.3 Trial is currently set for September 26, 2016; Discovery closes on August 12,
2016.
Ill. Argument and Authorities
3.0 Notwithstanding that Plaintiffs’ requests are overly broad on their face,*
Plaintiffs’ requests violate the fundamental privacy rights of the School’s other students and all
information related to and personally-identifiable information about the School’s students is
expressly protected by the Family Educational and Privacy Rights Act (FERPA) and the
School’s Privacy Policy. See 20 U.S.C. § 1232g; Ex. 1, Privacy Policy.
* Plaintiffs
seek documents dating
back to January 1, 2009 for a single alleged incident alleged to have
occurred on October 31, 2014. See First Amd. Mot. to Compel. Ex. A, p. 8. Further, Plaintiffs request is
overbroad; they have not limited their discovery of the FERPA protected information in any way—the
request is not limited to those students present on the field trip to Ripley's on the date of the alleged
incident, it is not limited to reports or complaints or demands related to the alleged abuser, and it is not
limitedto allegations of sexual abuse. Id at p.8, p.12.
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
4 of 11
A The School’s other students’ fundamental rights to privacy outweigh Plaintiffs’
improper fishing expedition.
3.1 Plaintiffs’ petition alleges a single incident that occurred at Ripley's Believe it or
Not in Grand Prairie, Dallas County, Texas on October 31, 2014. Plaintiff does not allege
ongoing or pervasive abuse and the Plaintiffs’ petition expressly alleges that the assault occurred.
while the alleged abuser and John Doe II were “alone and away from the group.” See Pl.’s Orig.
Pet. 13; Pls.’ First Amd. Mot. to Compel Ex. D, itemE. Thus, as a threshold matter, not only
do Plaintiffs admit there were no witnesses to the alleged abuse, the investigations of the
agencies concluded
that no abuse occurred. As a result, there is no information
that the School’s
other students, who are mostly minors, or their families could provide that would reasonably lead
to information relevant to proving Plaintiffs’ single-incident, admittedly unwitnessed allegation.
See In re CI Host, Inc. 92 S.W.3d 514, 517 (Tex. 2002) (recognizing that the court should give
serious consideration to the interest of a nonparty whose information is sought in discovery); c.f.
Tex. Comptroller of Pub. Accounts v. AG of Tex., 354 S.W.3d 336, 341 (Tex. 2010) (citing U.S.
Dep't of State v. Wash. Post Co., 456 U.S. 595, 600, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982)
(noting that “limitation of a ‘clearly unwarranted invasion of personal privacy’ provides a proper
balance between the protection of an individual’s right of privacy and the preservation of the
public’s right to Govemment information by excluding those kinds of files the disclosureof
which might harm the individual” (quoting H. R. Rep. No. 1497, 89th Cong,, 2nd Sess., at 11
(1966))); Fadjov. Coon, 633 F.2d 1172, 1176 (5th Cir. 1991) (“An intrusion into the interestin
avoiding disclosure of personal information will thus only be upheld when the govemment
demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff’s
Privacy interest.”). No less consideration of the competing interests at stake should be applied
when
as here, the Court must weigh the privacy rights of the School’s mostly minor students and
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
5 of 11
their families, all third parties, against the Plaintiffs’ tenuous, overreaching, and overbroad
discovery requests in a case where, even prior to Plaintiffs’ filing suit, three independent
investigative agencies have deemed Plaintiffs’ allegations unfounded.
3.2 Further, by contacting third-parties outside of the discovery process and
discussing openly the allegations in this lawsuit, Plaintiff John Doe I has already demonstrated
contempt for and violation of the Protective Order that he himself sought. Considering John Doe
T’s actions and that to date Plaintiffs have wholly failed to provide any expert designation or
medical reports (items necessary to prove their allegations) and that three independent entities—
one of whose investigation included a medical examination—have determined that no abuse
occurred, unless or until Plaintiffs provide at least a scintilla of evidentiary support for their
claims
the fundamental privacy rights of the School’s other students and their families should not
be compromised. Humphreys v. Meadows, 938 S.W.2d 750, 751 (Tex. App.—Fort Worth 1996,
no wait) (recognizing that Texas Rule of Civil Procedure permits a trial court to remedy
discovery violations by various methods up to and including dismissing an action with prejudice
so longas it is ‘just.’”). And, because discovery does not close until August 2016 and Plaintiffs
will be in sole control of the mechanism by which to move to the next stage of discovery from.
unrelated third-parties, Plaintiffs will not be prejudiced by the Court’s adoption of this stairstep
discovery process.
3.3 Accordingly, at this time, given that there is no articulable reason or a scintilla of
evidence that outweighs the School’s other students’ and their families’ fundamental privacy
tights, the Court should deny the Plaintiffs’ request for a fishing expedition that tramples the
rights of many unrelated and unwilling third-parties. Additionally, requiring production of the
School’s records at this time would likely result in substantial, unnecessary third-party litigation
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
6 of 11
in the form of Motions to Quash and injunctive relief filed by what could be dozens of additional
attomeys representing
the School’s other students and their families—all unrelated
to the proof
of Plaintiffs’ allegations. Also not inconsiderable is the financial burden that would be
unnecessarily imposed on those unrelated third-party families to retain counsel to protect the
rights of their children. See 20 U.S.C. 1232g(b)(2)(B); Santamaria v. Dallas Indep. Sch. Dist,
2006 U.S. Dist. LEXIS 33195, at *7 (N.D. Tex. May 17, 2006) (recognizing a judicial order
exception but still requiring advance notice to the affected parties).
3.4 However, even if the Court orders production of the requested confidential
student records and personally identifiable information, FERPA’s judicial order exception would
be triggered and the School should be afforded the right to notify the affected students and
parents in advance of the School’s disclosure. See 20 U.S.C. 1232g(b)(2)(B); Santamaria, 2006
U.S. Dist. LEXIS at 33195 at *7.
B FERPA requires that School obtain authorization from or notify and provide an
opportunity to object to, adult students or the parent or guardian of minor students
before the School discloses the information requested by the Plaintiffs.
3.5 FERPA absolutely bars the dissemination of information directly related to a
student to third-parties not recognized by the statute unless the school is authorized to do so by a
student over 18 years of age or a minor student’s parent or legal guardian. Id at § 1232g(b).
Relevant here, FERPA defines “education records” to mean “those records, files, documents, and.
other materials which—(i) contain information directly related to a student; and (ii) ae
maintained by an educational agency or institution. ...” Id at § 1232g(a)(4)(a). Also relevant
here, FERPA identifies and defines a subsetof education records as “directory information.” See
id at § 1232g(a)(5)(A). Directory information related to a student includes but is not limited to
the student’s name, address, and telephone listing. Id. Directory information does not include
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
7 of 11
letters
of complaints or demands by students or their parents. See id (devoid of the requested
items). Before directory information can be released, an educational agency or institution is
required to give notice and to allow a reasonable time for adult students or minor student’s
parents or guardians to object or withhold consent for such release. See id § 1232g(b). The
School’s Privacy Policy expressly and unequivocally incorporates FERPA’s statutory
protections. See Ex. 1, Privacy Policy (incorporating FERPA and other federal and state privacy
laws).
3.6 Here, Plaintiffs’ requests squarely intersect FERPA’s protections. Plaintiffs
request both directory information (Plaintiffs’ Request for Production number 11) for which
notice and an opportunity to object is required and non-directory information (Plaintiffs’ Request
for Production number 12) for which express authorization to release is required. See Pls.’ Mot.
to Compel, Ex. A, p.12. Here, given that Plaintiffs’ allegation is not only thus far unsupported
and those claims have been investigated and determined baseless by three independent agencies,
FERPA’s protections become even more important.
Cc The School’s Privacy Policy not only incorporates FERPA but also incorporates the
Federal Privacy Act of 1974 and state open records laws; and, the Privacy Policy
requires that the student, parent(s) and the campus administrator provide written
consent before releasing any school records or personally identifiable information.
3.7 In relevant part, the School’s Privacy Policy incorporates not only FERPA’s
protections but also those of the Federal Privacy Act of 1974 (Privacy Act) and state open
records laws. See Ex. 1, Privacy Policy; 5 U.S.C. § 552a. Thus, even if the statutes themselves
did not by their text apply, which they do, the Privacy Policy expressly incorporates the
referenced statutory protections. Id. Moreover, the Privacy Policy is even more restrictive than
the statutes and laws it incorporates requiring prior written permission of the student, parent(s),
and the campus administrator
before any school records
are released. Id.
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
8 of 11
3.8 As discussed above, and assuming that Plaintiffs’ requests are more than a fishing
expedition in furtherance of their violation of the Protective Order and John Doe I’s campaign of
defamation and tortious interference, FERPA requires a notice and objection period prior to the
release of the School’s records Plaintiffs request. Additionally, the Privacy Act, which is also
incorporated
into the School’ s Privacy Policy, mandates in relevant
part that absent a court order,
the School cannot release
any school or student records unless it receives a written request or
prior written consent from the person whose information is to be released. See 5 U.S.C. § 552a.
And, as noted above, in orderto comply with its own policies, which if it does not would open
the School up to numerous lawsuits, the School must obtain written consent from the student,
parent(s), and administrator before it can release the requested records. Thus, at a minimum
the
Court should delay ordering any compliance with Plaintiffs’ requests to allow the School to
provide the requisite notice and afford those affected unrelated third-parties a chance to protect
their fundamental right to privacy.
D Regardless of the Court’s decision, it should appropriately limit the Plaintiffs’
fishing expedition and intrusion into the fundamental privacy rights of students and
their families.
3.9 Notwithstanding the foregoing, if the Court is inclined to release the School’s
other students’ and their families’ third-party information, information that is wholly unrelated to
the Plaintiffs’ allegation, regardless of the timing of the court-ordered release of the information,
the Court should limit the intrusion into the third-party students’ and families’ fundamental
rights to only those students that were present at Ripley’s on the date of the alleged incident, to
only complaints of abuse similar in natureto that alleged herein, and to only complaints against
the alleged abuser in this case. See Davis v. Pate, 915 S.W.2d 76, 79 (Tex. App.—Corpus
Christi 1996, orig. proceeding) (distinguishing requests that are overbroad from those that lack
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page
9 of 11
specificity); In re Alford Chevrolet Geo, 997 S.W.2d 173, 181 (Tex. 1999) (discussing unduly
expansive discovery); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (discussing
overbroad request).
Iv. Conclusion
As outlined above, Plaintiffs’ requestto trample the rights of third parties, most of whom
are minors, to further John Doe I’s campaign of defamation, tortious interference, and violation
of Plaintiffs’ own Protective Order—in furtherance of claims that are not only unsupported but
also have been found baseless by not one, but three independent agencies—is a gross abuse of
the discovery process. Moreover, even if Plaintiffs’ requests fall properly within the law and the
bounds of discovery, which they do not, the Court is well within its discretion to stop or govem
Plaintiffs’ abusive actions in the manner outlined above.
Respectfully Submitted,
By: /s/ Robert Hammer
Robert W. Hammer
State Bar No.: 08854780
William H. Kincaid
State Bar No.: 11431500
ROBERT W. HAMMER
300 Legacy Downs Drive
Fort Worth, Texas 76126
Telephone 817/ 332-8266
Telefax 817/ 332-8708
robert@rhammerlaw.com.
AND
WILLIAM H. KINCAID
Box 457
Sanger, Texas 76266
Telephone 940/372-3598
whk4888@yahoo.com
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page 10 of 11
ATTORNEYS FOR DEFENDANTS
THE ANDERSON PRIVATE SCHOOL,
WILLIAM C. ANDERSON, LeVONNA C
ANDERSON, and ALEXANDER A
ANDERSON
CERTIFICATE OF SERVICE
I hereby certify that on October 2, 2015, I electronically filed the foregoing
document with the clerk for the 44th District Court, Dallas County State of Texas,
using Electronic Case Filing system of the Court. The Electronic Case Filing System sent a
“Notice of Electronic Filing” to the following attomeys of record who have consented in
waiting to this Notice as service of this document in this case by electronic means.
John D. Sloan, Jr.
Douglas W. Lukasik
SLOAN MATNEY, LLP
3838 Oak Lawn Ave., Ste. 1200
Dallas, Texas 75219
jsloan@sloanmatney.com.
dlukasik@sloanmatney.com
(f) 214-237-5474
Attomeys for Plaintiffs
S. Todd Parks
WALTERS, BALIDO & CRAIN,
L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
todd.parks@wbclawfirm.com.
tifications@whbclawfirm.com
(f) 214-760-1670
Attomeys for Ripley’ s Entertainment, Inc.
and Jim Pattison U.S.A., Inc.
By: /s/ Robert Hammer
Robert W. Hammer
Defendants The Anderson Private School’sFirst Amended.
Brief on FERPA and Other Student Privacy Related Matters Page 11 of 11
EXHIBIT 1
STATE OF TEXAS
COUNTY OF Terrak
BUSINESS RECORDS AFFIDAVIT
Before me, the undersigned authority, personally appeared William C.
Anderson who, being by me duly sworn, deposed as follows:
My name is William C. Anderson. | am of sound mind, capable of making this
affidavit, and personally acquainted with the facts herein stated:
| am the custodian of records of The Anderson Private School for the Gifted
Talented, and Creative. Attached hereto are 2 pages of records from The Anderson
Private School for the Gifted Talented, and Creative. These 2 pages of records are
the Privacy Policy of the Anderson Private School for the Gifted, Talented and
Creative.
These said pages of records are kept by me in the regular course of business,
and it was the regular course of business of The Anderson Private School for the
Gifted Talented, and Creative for an employee or representative of The Anderson
Private School for the Gifted Talented, and Creative, with knowledge of the act,
event, condition, opinion, or diagnosis, recorded to make the records or to transmit
information thereof to be included in such records; and the records were made at or
near the time or reasonably soon thereafter. The records attached hereto are the
original or exact duplicates of the original.
es
William C. Anderson
\ day of October, 2015.
SWORN TO AND SUBSCRIBED before me this omen:
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EXPIRES
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Privacy Policy
of the
Anderson Private School
for the Gifted, Talented and Creative
(Approved by unanimous consent of the Board of Directors January 14, 1995)
Education records are protected by federal and state statutes and
regulations and this policy of the Anderson Private School for the Gifted,
Talented and Creative. It is the strict governing policy of this school that
records cannot be released without the written prior permission and
signatory release of the student and the parent(s) and campus
administrator.
Records are protected by the federal Privacy Act of 1974, the Federal
Education Records and Privacy Act, the Freedom of Information Act, state
open records laws and the policy of the Anderson Private School for the
Gifted, Talented and Creative.
Courts have ruled that students and parents may sue in federal court as a
violation of their civil rights under color of state law. In addition, the
Supreme Court has ruled that students and parents may sue for monetary
damages for violations of the Federal Education Records and Privacy Act.
The Privacy Act creates both criminal and civil penalties for violators.
Individuals who willfully violate the disclosure provisions can be convicted
of a misdemeanor and fined up to $5,000. Any party who knowingly or
willfully obtains a person's record also faces criminal penalties. Civil liability
for willful or intentional acts includes injunctions against further acts,
damages of notless than $1,000, attorney fees and costs.
Itis now and shall continue without end, aeternus eternus, eternal, and
everlasting, to be the strict and unalterable policy of the Anderson Private
School for the Gifted, Talented and Creative not to disclose any information
including name(s), address(s), telephone number(s), assessments,
resume(s), vita(s), application information, letters of recommendation,
diagnostic information, testing, notes, personal data, transcriptions,
academic achievement records, continuous progress profiles, grades,
reports, disciplinary actions for violations of school rules, transcripts,
directory information including the name, address, telephone number, date
place of birth, field of study, awards and diploma awarded to students, unit
or chapter assessments, correspondence, expressions, audio recordings,
photographic records, pictures, or letters not confidential and confidential
letters unless the student and parent(s) have expressly waived, in writing
and signed by the student and parent(s), and the campus administrator the
right to see them.
There are no exceptions, specific or in general, to this policy.
The Anderson Private School for the Gifted, Talented and Creative shall
not release school records of any kind or nature or any personally
identifiable information without the prior written consent and permission and
signatory release of the student and the parent(s) and the campus
administrator.
EXHIBIT 2
AFFIDAVIT
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally
appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly
sworn, stated upon oath as follows:
I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J.
Smith. | am the parent of a child that attends the Anderson School for the Gifted. Talented and
Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I
have personal knowledge of the facts stated herein and they are true and correct.
My child is a student at the Anderson School for the Gifted, Talented and Creative. I
enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe
that the School's environment and its faculty do an excellent job of educating and fostering my child's
gifts, talents and creativity. | also agreed to enroll my child at the Anderson School because it agreed
to protect the privacy of my child's identity, address, telephone number, assessments, resume(s),
vita(s) application information, letters of recommendation, diagnostic information, testing, notes,
personal data, transcriptions, academic achievement records, continuous progress profiles,
grades, reports, disciplinary actions for violations of school rules, transcripts, directory
information including the name, address, telephone number, date and place of birth, field of
study, awards and diploma awarded to students, unit or chapter assessments, correspondence,
expressions, audio recordings, photographic records, pictures, or letters.
I do not want any information about my child disclosed in this lawsuit and I certainly do
not want another child's parent or lawyer contacting me to discuss any allegations against The
Anderson School or its faculty.
FURTHER AFFIANT SAYETH NOT:
mith
Alias J. Smith presented me with identification and I confirmed that the grson identified
as J. Smith swore to and subscribed the above affidavit before me o the —_! g day of
October 2015.
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ANCHEZ
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CATHY
STATE
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public
OF 1, 2017
Notary Public, State of Teffas
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Dems
AFFIDAVIT
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally
appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly
sworn, stated upon oath as follows:
I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J.
Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and
Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I
have personal knowledge of the facts stated herein and they are true and correct.
My child is a student at the Anderson School for the Gifted, Talented and Creative. I
enrolled my child at the Anderson School for the Gifted, Talented and Creative because | believe
that the School's environment and its faculty do an excellent job of educating and fostering my child's
gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed
to protect the privacy of my child's identity, address, telephone number, assessments, resume(s),
vita(s) application information, letters of recommendation, diagnostic information, testing, notes,
personal data, transcriptions, academic achievement records, continuous progress profiles,
grades, reports, disciplinary actions for violations of school rules, transcripts, directory
information including the name, address, telephone number, date and place of birth, field of
study, awards and diploma awarded to students, unit or chapter assessments, correspondence,
expressions, audio recordings, photographic records, pictures, or letters.
I do not want any information about my child disclosed in this lawsuit and I certainly do
not want another child's parent or lawyer contacting me to discuss any allegations against The
Anderson School or its faculty.
FURTHER AFFIANT SAYETH NOT:
alias
J. Smith
A
Alias J. Smith presented me with identification and I confirmed that the person identified
as J. Smith swore to and subscribed the above affidavit before me on this the day of
October 2015.
a
Fo RICARDO CERVANTES
lary Public, State of Texas i
My Commission Expires
t blic, State of Texas
February 13, 2018 |
——.
AFFIDAVIT
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally
appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly
sworn, stated upon oath as follows:
I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J.
Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and
Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I
have personal knowledge of the facts stated herein and they are true and correct.
My child is a student at the Anderson School for the Gifted, Talented and Creative. I
enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe
job of educating and fostering my child's
that the School's environment and its faculty do an excellent
gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed
to protect the privacy of my child's identity, address, telephone number, assessments, resume(s),
vita(s) application information, letters of recommendation, diagnostic information, testing, notes,
personal data, transcriptions, academic achievement records, continuous progress profiles,
grades, reports, disciplinary actions for violations of school rules, transcripts, directory
information including the name, address, telephone number, date and place of birth, field of
study, awards and diploma awarded to students, unit or chapter assessments, correspondence,
expressions, audio recordings, photographic records, pictures, or letters.
Ido not want any information about my child disclosed in this lawsuit and I certainly do
not want another child's parent or lawyer contacting me to discuss any allegations against The
Anderson School or its faculty.
FURTHER AFFIANT SAYETH NOT:
aliagY. Smith
as J. Smith swore to and subscribed the above affidavit before me on this the a
Alias J. Smith presented me with identification and I confirmed that th e person identified
day of
October 2015.
corseccs
" JANA
LEA GATES No Public, State of Texas
Notary Public
My Con Eee04-17-2018
AFFIDAVIT
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally
appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly
sworn, stated upon oath as follows:
I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J.
Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and
Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I
have personal knowledge of the facts stated herein and they are true and correct.
My child is a student at the Anderson School for the Gifted, Talented and Creative. |
enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe
that the School's environment and its faculty do an excellent
job of educating and fostering my child's
gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed
to protect the privacy of my child's identity, address, telephone number, assessments, resume(s),
vita(s) application information, letters of recommendation, diagnostic information, testing, notes,
personal data, transcriptions, academic achievement records, continuous progress profiles,
grades, reports, disciplinary actions for violations of school rules, transcripts, directory
information including the name, address, telephone number, date and place of birth, field of
study, awards and diploma awarded to students, unit or chapter assessments, correspondence,
expressions, audio recordings, photographic records, pictures, or letters.
I do not want any information about my child disclosed in this lawsuit and I certainly do
not want another child's parent or lawyer contacting me to discuss any allegations against The
Anderson School or its faculty.
FURTHER AFFIANT SAYETH NOT:
)
/)
alias J. Smith ym
Alias J. Smith presented me with identification and I confirmed that the person identified
as J. Smith swore to and subscribed the above affidavit before me on this the _2a,/ day of
October 2015.
A Zxt—
Notary Public, State of Texas
Oat Z, 20)5—
TED ZARATE
"Ronn
27
AFFIDAVIT
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally
appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly
sworn, stated upon oath as follows:
I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J.
Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and
Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit, I
have personal knowledge of the facts stated herein and they are true and correct.
My child is a student at the Anderson School for the Gifted, Talented and Creative. I
enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe
that the School's environment and its faculty do an excellent job of educating and fostering my child's
gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed
to protect the privacy of my child's identity, address, telephone number, assessments, resume(s),
vita(s) application information, letters of recommendation, diagnostic information, testing, notes,
personal data, transcriptions, academic achievement records, continuous progress profiles,
grades, reports, disciplinary actions for violations of school rules, transcripts, directory
information including the name, address, telephone number, date and place of birth, field of
study, awards and diploma awarded to students, unit or chapter assessments, correspondence,
expressions, audio recordings, photographic records, pictures, or letters.
I do not want any information about my child disclosed in this lawsuit and I certainly do
not want another child's parent or lawyer contacting me to discuss any allegations against The
Anderson School or its faculty.
FURTHER AFFIANT SAYETH NOT:
»
alias J. ake 1)
Math
Alias J. Smith presented me with identification and I confirmed that the
as J. Smith swore to and subscribed the above affidavit
October 2015.
ff re me on this thea d sonday ofidentifigé
ii
7
Preview
I DALLAS COUNTY 10/5/2015 12:00:00 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-07174 JOHN DOE I, INDIVIDUALLY AND AS IN THE DISTRICT COURT NEXT FRIEND TO JOHN DOE II, A MINOR Plaintiffs VS. THE ANDERSON PRIVATE SCHOOL, WILLIAM C. ANDERSON, INDIVIDUALLY, DALLAS COUNTY, TEXAS LEVONNA Cc ANDERSON, INDIVIDUALLY, “ALEXANDER A ANDERSON, INDIVIDUALLY, RIPLEY ENTERTAINMENT, _ INC., and JIM PATTISON U.S.A., INC. 44TH-B JUDICIAL DISTRICT DEFENDANTS’ FIRST AMENDED BRIEF ON FERPA AND OTHER STUDENT PRIVACY RELATED MATTERS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendants, THE ANDERSON PRIVATE SCHOOL. (School), WILLIAM C. ANDERSON, _ INDIVIDUALLY, LEVONNA C. ANDERSON, INDIVIDUALLY, ALEXANDER A. ANDERSON, INDIVIDUALLY, (collectively, Defendants)’ RIPLEY ENTERTAINMENT, INC., and JIM PATTISON U.S.A., INC. and files this First Amended Brief on FERPA and Other Student Privacy Related Matters (Brief) and in support respectfully shows the Court the following: I. Evidence Relied Upon” 1.0 In support of this Brief, Defendants rely on all documents on file with this Court that are incorporated by reference as if set out verbatim herein. In addition, Defendants rely on 1 Although William C. Anderson, LeVonna C. Anderson, and Alexander A. Anderson are not, in their individual capacities as named in this lawsuit, authorized to release the School’s records, because the Plaintiffs’ Motion to Compel names all Defendants and does not direct specific discovery requests to any patticular responding party, William C. Anderson, LéVonna C. Anderson, and Alexander A. Anderson join in this Brief with the Defendant School. See Pls.’ First Amd. Mot. to Compel, Preamble (naming the School and all individual Anderson defendants). ? Because discovery has only just begun in this case, Defendants provide exhibits to their Brief to assist the Court in evaluatingthe Plaintiffs’ requests in context with evidence relevant to the Court’s analysis. Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 1 of11 the evidence attached to this response and incorporated into this Brief as if set out verbatim herein: Exhibit 1 The Anderson Private School Privacy Policy and Supporting Affidavit (Privacy Policy) Exhibit 2 Affidavits of J. Smiths (Parents of Anderson School Students who wish to protect their own and their children’s identities and confidential School information from disclosure) Exhibit 3 Affidavit, William C. Anderson of The Anderson Private School Exhibit4 Affidavit of Linda Delamare Exhibit 5 TDFPS Correspondence Dated February 2, 2015 and April 2, 2015 (TDFPS Com)? Exhibit 6 Defamation Letter (Redacted) II. Factual and Procedural Background 2.0 Plaintiffs’ Original Petition alleges the sexual assault of a child, allegations which the Defendants emphatically deny. Given the egregious and sensitive nature of the allegations the Plaintiffs have properly used fictitious identities to protect the alleged sexual assault victim. These allegations are also egregious and sensitive to the Defendants given the fact that three separate and. independent investigative agencies—The Grand Prairie Police Department, Cook Children’s Hospital, and The Texas Department of Family and Protective Services investigated Plaintiffs’ underlying allegations of sexual assault and concluded that the alleged sexual assault did not occur. Y et, all Defendants have been identified by name, a bell that cannot be unrung and. that has and will continue to have devastating effects on the individual defendants’, who are all educators and whose life’ s work and livelihood hang in the balance.. And if that is not damaging enough, Plaintiffs now seek to compel production of the names, addresses and telephone numbers of all of the School’s students from January 1, 2009, more than five years before the alleged, single incident, to the present. See generally Pls.’ First Amend. Pet. (filed June 24, 3 Pursuant to the Court’ s Protective Order, John Doe II’s identity has been concealed on the February 2, 2015 correspondence to AlexanderA. Anderson. Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 2 of 11 2015); Pls.’ First Amd. Mot. to Compel and Strike Obj. (Pls.’ First Amd. Mot. to Compel), Ex. D E (indicating that three independent investigators concluded that no sexual assault occurred and that even John Doe II’s own Mother is likely going to be a witness favorable to the Defendants); Ex. 5, TDFPS Com. (stating TDFPS has “determined after the investigation that a child was not abused, neglected or exploited while in [the alleged abuser’s] care” and that TDFPS determined that the alleged abuser “had no role and the investigation was closed.”); see also Tex. R. Evid. 901(7) (containing hearsay exception for “public record, report, statement or data compilation . . . is from the public office here items of this nature are kept”). 21 Shortly after receiving notice of the lawsuit, the Defendants, pursuant to Texas Civil Practice and Remedies Code Section 73.055, served a defamation notice on Plaintiff. See Defs.’ Amd. Ans. To Pls.’ Mot. to Compel and Strike Obj., Ex. A, pp 1-2 (Westfall Aff.); Ex. 6. 2.2 The parties are in the initial stages of discovery and it is in response to Plaintiffs’ discovery requests that this Brief is filed. Despite Plaintiffs’ failure to name any experts or provide any medical reports (both items necessary to prove Plaintiffs’ claims) in response to the Defendants’ Request for Disclosure, Plaintiff seeks, among other items, “[a] complete roster of all students of the [School] with contact information (name, address and telephone numbers) for their parents” and “[alny demand letters or complaints to the [School] alleging improper treatment of a student.” See Pls.’ First Amd. Mot. to Compel. Ex. A, p. 12 Jitems 11 & 12. In addition to discovery, Plaintiffs sought, and the Court signed, a Protective Order in this case restricting the discussion of the Plaintiffs’ identities and expressly providing that No party may divulge Plaintiffs’ identities to anyone other than a Qualified Person [,defined by the protective Order as the judge, a party to the action, attomeys and their agents, and persons authorized by written order of a court specific to that person,] without a written order of the [Clourt; provided, however nothing herein restricts the use of the identities when seeking information through proper discovery, but shall apply to discovery responses submittedto the Court. Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 3 of 11 See Prot. Ord. (signed Sept. 2, 2015). Concurrent with the Plaintiffs seeking this Protective Order, Plaintiff John Doe I, on his own without counsel and on information and belief outside of the discovery process, contacted other students and parents of the School’s other students—third parties that by Plaintiffs’ own pleadings cannot have information related to the proof of Plaintiffs’ allegations—and not only interrogated them about their relationship with the school but openly discussed the allegations of abuse underlying Plaintiffs’ claims and accused a School faculty member of being a rapist. See Exs. 3,4. John Doe I's defamatory actions have caused the School to suffer financial losses because some Parents have removed their children from the school, not because they believe the allegations, but because they do not want to be drawn into Plaintiffs’ lawsuit. See Ex. 2. 2.3 Trial is currently set for September 26, 2016; Discovery closes on August 12, 2016. Ill. Argument and Authorities 3.0 Notwithstanding that Plaintiffs’ requests are overly broad on their face,* Plaintiffs’ requests violate the fundamental privacy rights of the School’s other students and all information related to and personally-identifiable information about the School’s students is expressly protected by the Family Educational and Privacy Rights Act (FERPA) and the School’s Privacy Policy. See 20 U.S.C. § 1232g; Ex. 1, Privacy Policy. * Plaintiffs seek documents dating back to January 1, 2009 for a single alleged incident alleged to have occurred on October 31, 2014. See First Amd. Mot. to Compel. Ex. A, p. 8. Further, Plaintiffs request is overbroad; they have not limited their discovery of the FERPA protected information in any way—the request is not limited to those students present on the field trip to Ripley's on the date of the alleged incident, it is not limited to reports or complaints or demands related to the alleged abuser, and it is not limitedto allegations of sexual abuse. Id at p.8, p.12. Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 4 of 11 A The School’s other students’ fundamental rights to privacy outweigh Plaintiffs’ improper fishing expedition. 3.1 Plaintiffs’ petition alleges a single incident that occurred at Ripley's Believe it or Not in Grand Prairie, Dallas County, Texas on October 31, 2014. Plaintiff does not allege ongoing or pervasive abuse and the Plaintiffs’ petition expressly alleges that the assault occurred. while the alleged abuser and John Doe II were “alone and away from the group.” See Pl.’s Orig. Pet. 13; Pls.’ First Amd. Mot. to Compel Ex. D, itemE. Thus, as a threshold matter, not only do Plaintiffs admit there were no witnesses to the alleged abuse, the investigations of the agencies concluded that no abuse occurred. As a result, there is no information that the School’s other students, who are mostly minors, or their families could provide that would reasonably lead to information relevant to proving Plaintiffs’ single-incident, admittedly unwitnessed allegation. See In re CI Host, Inc. 92 S.W.3d 514, 517 (Tex. 2002) (recognizing that the court should give serious consideration to the interest of a nonparty whose information is sought in discovery); c.f. Tex. Comptroller of Pub. Accounts v. AG of Tex., 354 S.W.3d 336, 341 (Tex. 2010) (citing U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 600, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982) (noting that “limitation of a ‘clearly unwarranted invasion of personal privacy’ provides a proper balance between the protection of an individual’s right of privacy and the preservation of the public’s right to Govemment information by excluding those kinds of files the disclosureof which might harm the individual” (quoting H. R. Rep. No. 1497, 89th Cong,, 2nd Sess., at 11 (1966))); Fadjov. Coon, 633 F.2d 1172, 1176 (5th Cir. 1991) (“An intrusion into the interestin avoiding disclosure of personal information will thus only be upheld when the govemment demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff’s Privacy interest.”). No less consideration of the competing interests at stake should be applied when as here, the Court must weigh the privacy rights of the School’s mostly minor students and Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 5 of 11 their families, all third parties, against the Plaintiffs’ tenuous, overreaching, and overbroad discovery requests in a case where, even prior to Plaintiffs’ filing suit, three independent investigative agencies have deemed Plaintiffs’ allegations unfounded. 3.2 Further, by contacting third-parties outside of the discovery process and discussing openly the allegations in this lawsuit, Plaintiff John Doe I has already demonstrated contempt for and violation of the Protective Order that he himself sought. Considering John Doe T’s actions and that to date Plaintiffs have wholly failed to provide any expert designation or medical reports (items necessary to prove their allegations) and that three independent entities— one of whose investigation included a medical examination—have determined that no abuse occurred, unless or until Plaintiffs provide at least a scintilla of evidentiary support for their claims the fundamental privacy rights of the School’s other students and their families should not be compromised. Humphreys v. Meadows, 938 S.W.2d 750, 751 (Tex. App.—Fort Worth 1996, no wait) (recognizing that Texas Rule of Civil Procedure permits a trial court to remedy discovery violations by various methods up to and including dismissing an action with prejudice so longas it is ‘just.’”). And, because discovery does not close until August 2016 and Plaintiffs will be in sole control of the mechanism by which to move to the next stage of discovery from. unrelated third-parties, Plaintiffs will not be prejudiced by the Court’s adoption of this stairstep discovery process. 3.3 Accordingly, at this time, given that there is no articulable reason or a scintilla of evidence that outweighs the School’s other students’ and their families’ fundamental privacy tights, the Court should deny the Plaintiffs’ request for a fishing expedition that tramples the rights of many unrelated and unwilling third-parties. Additionally, requiring production of the School’s records at this time would likely result in substantial, unnecessary third-party litigation Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 6 of 11 in the form of Motions to Quash and injunctive relief filed by what could be dozens of additional attomeys representing the School’s other students and their families—all unrelated to the proof of Plaintiffs’ allegations. Also not inconsiderable is the financial burden that would be unnecessarily imposed on those unrelated third-party families to retain counsel to protect the rights of their children. See 20 U.S.C. 1232g(b)(2)(B); Santamaria v. Dallas Indep. Sch. Dist, 2006 U.S. Dist. LEXIS 33195, at *7 (N.D. Tex. May 17, 2006) (recognizing a judicial order exception but still requiring advance notice to the affected parties). 3.4 However, even if the Court orders production of the requested confidential student records and personally identifiable information, FERPA’s judicial order exception would be triggered and the School should be afforded the right to notify the affected students and parents in advance of the School’s disclosure. See 20 U.S.C. 1232g(b)(2)(B); Santamaria, 2006 U.S. Dist. LEXIS at 33195 at *7. B FERPA requires that School obtain authorization from or notify and provide an opportunity to object to, adult students or the parent or guardian of minor students before the School discloses the information requested by the Plaintiffs. 3.5 FERPA absolutely bars the dissemination of information directly related to a student to third-parties not recognized by the statute unless the school is authorized to do so by a student over 18 years of age or a minor student’s parent or legal guardian. Id at § 1232g(b). Relevant here, FERPA defines “education records” to mean “those records, files, documents, and. other materials which—(i) contain information directly related to a student; and (ii) ae maintained by an educational agency or institution. ...” Id at § 1232g(a)(4)(a). Also relevant here, FERPA identifies and defines a subsetof education records as “directory information.” See id at § 1232g(a)(5)(A). Directory information related to a student includes but is not limited to the student’s name, address, and telephone listing. Id. Directory information does not include Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 7 of 11 letters of complaints or demands by students or their parents. See id (devoid of the requested items). Before directory information can be released, an educational agency or institution is required to give notice and to allow a reasonable time for adult students or minor student’s parents or guardians to object or withhold consent for such release. See id § 1232g(b). The School’s Privacy Policy expressly and unequivocally incorporates FERPA’s statutory protections. See Ex. 1, Privacy Policy (incorporating FERPA and other federal and state privacy laws). 3.6 Here, Plaintiffs’ requests squarely intersect FERPA’s protections. Plaintiffs request both directory information (Plaintiffs’ Request for Production number 11) for which notice and an opportunity to object is required and non-directory information (Plaintiffs’ Request for Production number 12) for which express authorization to release is required. See Pls.’ Mot. to Compel, Ex. A, p.12. Here, given that Plaintiffs’ allegation is not only thus far unsupported and those claims have been investigated and determined baseless by three independent agencies, FERPA’s protections become even more important. Cc The School’s Privacy Policy not only incorporates FERPA but also incorporates the Federal Privacy Act of 1974 and state open records laws; and, the Privacy Policy requires that the student, parent(s) and the campus administrator provide written consent before releasing any school records or personally identifiable information. 3.7 In relevant part, the School’s Privacy Policy incorporates not only FERPA’s protections but also those of the Federal Privacy Act of 1974 (Privacy Act) and state open records laws. See Ex. 1, Privacy Policy; 5 U.S.C. § 552a. Thus, even if the statutes themselves did not by their text apply, which they do, the Privacy Policy expressly incorporates the referenced statutory protections. Id. Moreover, the Privacy Policy is even more restrictive than the statutes and laws it incorporates requiring prior written permission of the student, parent(s), and the campus administrator before any school records are released. Id. Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 8 of 11 3.8 As discussed above, and assuming that Plaintiffs’ requests are more than a fishing expedition in furtherance of their violation of the Protective Order and John Doe I’s campaign of defamation and tortious interference, FERPA requires a notice and objection period prior to the release of the School’s records Plaintiffs request. Additionally, the Privacy Act, which is also incorporated into the School’ s Privacy Policy, mandates in relevant part that absent a court order, the School cannot release any school or student records unless it receives a written request or prior written consent from the person whose information is to be released. See 5 U.S.C. § 552a. And, as noted above, in orderto comply with its own policies, which if it does not would open the School up to numerous lawsuits, the School must obtain written consent from the student, parent(s), and administrator before it can release the requested records. Thus, at a minimum the Court should delay ordering any compliance with Plaintiffs’ requests to allow the School to provide the requisite notice and afford those affected unrelated third-parties a chance to protect their fundamental right to privacy. D Regardless of the Court’s decision, it should appropriately limit the Plaintiffs’ fishing expedition and intrusion into the fundamental privacy rights of students and their families. 3.9 Notwithstanding the foregoing, if the Court is inclined to release the School’s other students’ and their families’ third-party information, information that is wholly unrelated to the Plaintiffs’ allegation, regardless of the timing of the court-ordered release of the information, the Court should limit the intrusion into the third-party students’ and families’ fundamental rights to only those students that were present at Ripley’s on the date of the alleged incident, to only complaints of abuse similar in natureto that alleged herein, and to only complaints against the alleged abuser in this case. See Davis v. Pate, 915 S.W.2d 76, 79 (Tex. App.—Corpus Christi 1996, orig. proceeding) (distinguishing requests that are overbroad from those that lack Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 9 of 11 specificity); In re Alford Chevrolet Geo, 997 S.W.2d 173, 181 (Tex. 1999) (discussing unduly expansive discovery); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (discussing overbroad request). Iv. Conclusion As outlined above, Plaintiffs’ requestto trample the rights of third parties, most of whom are minors, to further John Doe I’s campaign of defamation, tortious interference, and violation of Plaintiffs’ own Protective Order—in furtherance of claims that are not only unsupported but also have been found baseless by not one, but three independent agencies—is a gross abuse of the discovery process. Moreover, even if Plaintiffs’ requests fall properly within the law and the bounds of discovery, which they do not, the Court is well within its discretion to stop or govem Plaintiffs’ abusive actions in the manner outlined above. Respectfully Submitted, By: /s/ Robert Hammer Robert W. Hammer State Bar No.: 08854780 William H. Kincaid State Bar No.: 11431500 ROBERT W. HAMMER 300 Legacy Downs Drive Fort Worth, Texas 76126 Telephone 817/ 332-8266 Telefax 817/ 332-8708 robert@rhammerlaw.com. AND WILLIAM H. KINCAID Box 457 Sanger, Texas 76266 Telephone 940/372-3598 whk4888@yahoo.com Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 10 of 11 ATTORNEYS FOR DEFENDANTS THE ANDERSON PRIVATE SCHOOL, WILLIAM C. ANDERSON, LeVONNA C ANDERSON, and ALEXANDER A ANDERSON CERTIFICATE OF SERVICE I hereby certify that on October 2, 2015, I electronically filed the foregoing document with the clerk for the 44th District Court, Dallas County State of Texas, using Electronic Case Filing system of the Court. The Electronic Case Filing System sent a “Notice of Electronic Filing” to the following attomeys of record who have consented in waiting to this Notice as service of this document in this case by electronic means. John D. Sloan, Jr. Douglas W. Lukasik SLOAN MATNEY, LLP 3838 Oak Lawn Ave., Ste. 1200 Dallas, Texas 75219 jsloan@sloanmatney.com. dlukasik@sloanmatney.com (f) 214-237-5474 Attomeys for Plaintiffs S. Todd Parks WALTERS, BALIDO & CRAIN, L.L.P. 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 todd.parks@wbclawfirm.com. tifications@whbclawfirm.com (f) 214-760-1670 Attomeys for Ripley’ s Entertainment, Inc. and Jim Pattison U.S.A., Inc. By: /s/ Robert Hammer Robert W. Hammer Defendants The Anderson Private School’sFirst Amended. Brief on FERPA and Other Student Privacy Related Matters Page 11 of 11 EXHIBIT 1 STATE OF TEXAS COUNTY OF Terrak BUSINESS RECORDS AFFIDAVIT Before me, the undersigned authority, personally appeared William C. Anderson who, being by me duly sworn, deposed as follows: My name is William C. Anderson. | am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: | am the custodian of records of The Anderson Private School for the Gifted Talented, and Creative. Attached hereto are 2 pages of records from The Anderson Private School for the Gifted Talented, and Creative. These 2 pages of records are the Privacy Policy of the Anderson Private School for the Gifted, Talented and Creative. These said pages of records are kept by me in the regular course of business, and it was the regular course of business of The Anderson Private School for the Gifted Talented, and Creative for an employee or representative of The Anderson Private School for the Gifted Talented, and Creative, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the records or to transmit information thereof to be included in such records; and the records were made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. es William C. Anderson \ day of October, 2015. SWORN TO AND SUBSCRIBED before me this omen: yy Liha: Cooae0) SoS sia Rae <% SSA *=S Notary Public” Me As My commission expires: A gust 9, aA EXPIRES Se seen “Ny ne ST 9. © Han [seal] Privacy Policy of the Anderson Private School for the Gifted, Talented and Creative (Approved by unanimous consent of the Board of Directors January 14, 1995) Education records are protected by federal and state statutes and regulations and this policy of the Anderson Private School for the Gifted, Talented and Creative. It is the strict governing policy of this school that records cannot be released without the written prior permission and signatory release of the student and the parent(s) and campus administrator. Records are protected by the federal Privacy Act of 1974, the Federal Education Records and Privacy Act, the Freedom of Information Act, state open records laws and the policy of the Anderson Private School for the Gifted, Talented and Creative. Courts have ruled that students and parents may sue in federal court as a violation of their civil rights under color of state law. In addition, the Supreme Court has ruled that students and parents may sue for monetary damages for violations of the Federal Education Records and Privacy Act. The Privacy Act creates both criminal and civil penalties for violators. Individuals who willfully violate the disclosure provisions can be convicted of a misdemeanor and fined up to $5,000. Any party who knowingly or willfully obtains a person's record also faces criminal penalties. Civil liability for willful or intentional acts includes injunctions against further acts, damages of notless than $1,000, attorney fees and costs. Itis now and shall continue without end, aeternus eternus, eternal, and everlasting, to be the strict and unalterable policy of the Anderson Private School for the Gifted, Talented and Creative not to disclose any information including name(s), address(s), telephone number(s), assessments, resume(s), vita(s), application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters not confidential and confidential letters unless the student and parent(s) have expressly waived, in writing and signed by the student and parent(s), and the campus administrator the right to see them. There are no exceptions, specific or in general, to this policy. The Anderson Private School for the Gifted, Talented and Creative shall not release school records of any kind or nature or any personally identifiable information without the prior written consent and permission and signatory release of the student and the parent(s) and the campus administrator. EXHIBIT 2 AFFIDAVIT BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly sworn, stated upon oath as follows: I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J. Smith. | am the parent of a child that attends the Anderson School for the Gifted. Talented and Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I have personal knowledge of the facts stated herein and they are true and correct. My child is a student at the Anderson School for the Gifted, Talented and Creative. I enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe that the School's environment and its faculty do an excellent job of educating and fostering my child's gifts, talents and creativity. | also agreed to enroll my child at the Anderson School because it agreed to protect the privacy of my child's identity, address, telephone number, assessments, resume(s), vita(s) application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date and place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters. I do not want any information about my child disclosed in this lawsuit and I certainly do not want another child's parent or lawyer contacting me to discuss any allegations against The Anderson School or its faculty. FURTHER AFFIANT SAYETH NOT: mith Alias J. Smith presented me with identification and I confirmed that the grson identified as J. Smith swore to and subscribed the above affidavit before me o the —_! g day of October 2015. oe ae oo ANCHEZ ant a a CATHY STATE S public OF 1, 2017 Notary Public, State of Teffas Xeno? ‘My Comm. Dems AFFIDAVIT BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly sworn, stated upon oath as follows: I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J. Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I have personal knowledge of the facts stated herein and they are true and correct. My child is a student at the Anderson School for the Gifted, Talented and Creative. I enrolled my child at the Anderson School for the Gifted, Talented and Creative because | believe that the School's environment and its faculty do an excellent job of educating and fostering my child's gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed to protect the privacy of my child's identity, address, telephone number, assessments, resume(s), vita(s) application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date and place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters. I do not want any information about my child disclosed in this lawsuit and I certainly do not want another child's parent or lawyer contacting me to discuss any allegations against The Anderson School or its faculty. FURTHER AFFIANT SAYETH NOT: alias J. Smith A Alias J. Smith presented me with identification and I confirmed that the person identified as J. Smith swore to and subscribed the above affidavit before me on this the day of October 2015. a Fo RICARDO CERVANTES lary Public, State of Texas i My Commission Expires t blic, State of Texas February 13, 2018 | ——. AFFIDAVIT BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly sworn, stated upon oath as follows: I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J. Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I have personal knowledge of the facts stated herein and they are true and correct. My child is a student at the Anderson School for the Gifted, Talented and Creative. I enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe job of educating and fostering my child's that the School's environment and its faculty do an excellent gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed to protect the privacy of my child's identity, address, telephone number, assessments, resume(s), vita(s) application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date and place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters. Ido not want any information about my child disclosed in this lawsuit and I certainly do not want another child's parent or lawyer contacting me to discuss any allegations against The Anderson School or its faculty. FURTHER AFFIANT SAYETH NOT: aliagY. Smith as J. Smith swore to and subscribed the above affidavit before me on this the a Alias J. Smith presented me with identification and I confirmed that th e person identified day of October 2015. corseccs " JANA LEA GATES No Public, State of Texas Notary Public My Con Eee04-17-2018 AFFIDAVIT BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly sworn, stated upon oath as follows: I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J. Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit. I have personal knowledge of the facts stated herein and they are true and correct. My child is a student at the Anderson School for the Gifted, Talented and Creative. | enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe that the School's environment and its faculty do an excellent job of educating and fostering my child's gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed to protect the privacy of my child's identity, address, telephone number, assessments, resume(s), vita(s) application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date and place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters. I do not want any information about my child disclosed in this lawsuit and I certainly do not want another child's parent or lawyer contacting me to discuss any allegations against The Anderson School or its faculty. FURTHER AFFIANT SAYETH NOT: ) /) alias J. Smith ym Alias J. Smith presented me with identification and I confirmed that the person identified as J. Smith swore to and subscribed the above affidavit before me on this the _2a,/ day of October 2015. A Zxt— Notary Public, State of Texas Oat Z, 20)5— TED ZARATE "Ronn 27 AFFIDAVIT BEFORE ME, THE UNDERSIGNED AUTHORITY, on this date personally appeared the person I confirmed to be the undersigned affiant alias J. Smith, who, being duly sworn, stated upon oath as follows: I do not wish to disclose my identity. For purposes of this affidavit, my name is alias J. Smith. I am the parent of a child that attends the Anderson School for the Gifted, Talented and Creative. I am over 18 years of age, of sound mind, and I am competent to make this affidavit, I have personal knowledge of the facts stated herein and they are true and correct. My child is a student at the Anderson School for the Gifted, Talented and Creative. I enrolled my child at the Anderson School for the Gifted, Talented and Creative because I believe that the School's environment and its faculty do an excellent job of educating and fostering my child's gifts, talents and creativity. I also agreed to enroll my child at the Anderson School because it agreed to protect the privacy of my child's identity, address, telephone number, assessments, resume(s), vita(s) application information, letters of recommendation, diagnostic information, testing, notes, personal data, transcriptions, academic achievement records, continuous progress profiles, grades, reports, disciplinary actions for violations of school rules, transcripts, directory information including the name, address, telephone number, date and place of birth, field of study, awards and diploma awarded to students, unit or chapter assessments, correspondence, expressions, audio recordings, photographic records, pictures, or letters. I do not want any information about my child disclosed in this lawsuit and I certainly do not want another child's parent or lawyer contacting me to discuss any allegations against The Anderson School or its faculty. FURTHER AFFIANT SAYETH NOT: » alias J. ake 1) Math Alias J. Smith presented me with identification and I confirmed that the as J. Smith swore to and subscribed the above affidavit October 2015. ff re me on this thea d sonday ofidentifigé ii 7