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.