Think Twice Click Once and Recent Tech Issues

Think Twice, Send Once: Recent Tech Issues Bobby Truhe Harding & Shultz (402) 434-3000 btruhe@hslegalfirm.com H & S School Law @btruhe

R.S. v. Minnewaska • 2 Facebook postings ▪ “I hate Kathy because she was mean to me” ▫ “rude and discourteous” ▪ “I want to know who the f%$# told on me” ▫ “dangerous, harmful, nuisance”

R.S. v. Minnewaska • “Sexual conversations” about “naughty things” • Sheriff, Counselor, teacher • Demanded password • Broad search • “profanity” and sex quizzes

R.S. v. Minnewaska • First Amendment: Tinker violation ▪ No immunity, “should know” • Fourth Amendment: violation ▪ Messages like private email ▪ No “substantial interest in maintaining discipline” ▪ No immunity

An E-mail Is… • • • • •

A business record An education record A SpEd record An exhibit A public record…

E-mail as Business Record Federal Rules of Civil Procedure • Rule 26: duty to disclose • Rule 37: failure to cooperate in discovery process • Rule 37(e): “routine, good-faith operation of electronic information system”

E-mail as Education Record • FERPA: “education record” means materials which “contain info. directly related to a student [and] maintained by an educational agency” • Includes “print or computer media”

E-mail as SpEd Record • IDEA requires parental notification prior to deleting records which contain “personally identifying info. collected, maintained, or used” • Washoe County Sch. Dist and S.A. v. Tulare County Office of Ed.: the IDEA/SpEd/FERPA quagmire

E-mail as Hrg. Exhibits • Instill a culture of oral, not e-mail, griping • Federal Rules require “litigation hold” memo when there is “pending or reasonably anticipated litigation”

Email as Public Record • Records “of” or “belonging to” state agencies are those records “owned” by the agencies or records for which the state has title or ownership interest • E-mails in your possession can be public records – even if they are on your home email and computer…

When Emails Aren’t PR • The mere fact that a record is in the possession of a public officer or a public agency does not make it a public record.

• Purely personal emails might not be public records depending upon your policy or negotiated agreement

De Minimus Use • 49-14,101.03: permits minimal use of public resources if ▪ The personal use is part of compensation provided in employment contract or policy AND ▪ The personal use as compensation is reported to IRS

OPS Situation • Not all state public records statutes are the same • Things can be strange in Omaha • Not yet a current employee • Lessons ▪ Know your policy ▪ Don’t surprise board members

FB, Twitter, EN, DB, GD • No reported NE cases regarding public records and FB, Twitter, etc.

• “regardless of physical form” • “of” or “belonging to” and “ownership test” • Could be public record • Hyannis decision

Hypotheticals • Superintendent and teacher e-mail back and forth on private accounts • Two teachers FB message regarding a student’s behavior • Superintendent sends out a tweet regarding the district’s budget • Teacher/coach sends out a text regarding cancelled practice

To Ponder…

• What is your texting, email, Twitter, Facebook Policy regarding teachers/coaches communicating with students?

• Consider a “CC Admin” policy • Consider a Twitter page • The more “public,” the better

Your School’s Accounts • Your teachers’ pages, the school’s page, the school’s Twitter, etc.

• Could be public records • Subject to record retention laws • Some cities: disclaimer on social media platforms

Practical Pointers • • • • • • •

Know your e-mail retention policy Create culture of oral griping Keep relevant emails in hard copy Notify parents before deletion Don’t make a habit of FW: Keep all emails to/from parents No slang, sarcasm, or humor

Think Twice, Send Once: Recent Tech Issues Bobby Truhe Harding & Shultz (402) 434-3000 btruhe@hslegalfirm.com H & S School Law @btruhe