The school district is trying to recover billing invoices which contain sensitive information

 

Fairfax Circuit Judge David Oblon issued an order requiring two Fairfax County residents to stop the dissemination of Fairfax County Public Schools’ legal billing invoices obtained through the Virginia Freedom of Information Act (FOIA). 

FCPS provided a statement which included the judge’s ruling September 30, saying: “The ruling came after the school system learned that certain personal, sensitive and legally protected information was inadvertently released in response to a Freedom of Information Act (FOIA) request. FCPS asked for an injunction prohibiting dissemination of the protected information, which includes confidential student and personnel information involving third parties unrelated to the two county residents. Today’s order will remain in place until the court rules on the FCPS request for a preliminary injunction.” 

FCPS asked that Debra Tisler, who is also the mother of current and former FCPS students, return the documents — and that they might pursue legal action if she does not, according to a letter sent by Hunton Andrews Kurth LLP, the law firm which represents the school district. 

“These invoices just show … the use of taxpayer funds to abuse parents at all levels, whether you’re going to a school board meeting or you’re trying to advocate for your child,” Tisler said.

She also noted that in addition to receiving letters, she has gotten multiple phone calls from the law firm — specifically Ryan Bates — in regard to returning the documents. 

They also asked that Callie Oettinger, who posted several of the documents on specialeducationaction.com, remove the records from the website and refrain from disseminating the records as well, according to another letter sent by the law firm. 

The letter stated that the documents were “mistakenly and inadvertently released” by FCPS. The documents, which are invoices for legal services provided to FCPS by Hunton Andrews Kurth LLP, contain information that could breach the privacy of FCPS community members. 

They “contain sensitive, non-public information pertaining to third-parties, including students,” according to the letter the law firm sent to Oettinger.  

FCPS said in the statement that the district, “provided a corrected set of documents, with appropriate redactions of confidential and legally protected information, to Tisler September 24. FCPS has asked the court for an injunction preventing the defendants from disseminating the records and ordering them to provide a ‘full accounting’ of all persons to whom they provided the documents,”

Tisler said that she filed a FOIA in the first place to see what types of legal help FCPS is pursuing. 

“I put a FOIA in for information about legal expenses, you know, the legal invoices, and I gave a date range, because it’s extremely inequitable between parents versus the school systems when they’re trying to advocate and pursue their rights through the due process system,” Tisler explained.

The invoices contain varying information, from an investigation into Blackboard to matters pertaining to FCPS staff. Each invoice includes the date of service, the timekeeper, a description of the services, and the billable hours.  

One invoice, entitled “Investigation into cyber incident” contains a description dated for service Oct. 19, 2020. The description for the billable hours states: “Call with Mr. Foster regarding Board FAQs; call with Mr. Foster and Beth Waller regarding notification strategy; revise letter to employees and applicants; emails regarding FOIA; emails and call with Holly Brady regarding analyzing student files and data of the 26 individuals.”

Another invoice posted on the website, entitled “Various school board members matters” notes of a “Call with J. Foster and E. Tholen re recall petition,” dated for January 29 of this year. In August, a Fairfax Circuit judge dismissed the petition to remove Elaine Tholen from the Fairfax County School Board (FCSB). 

The potential preliminary injunction created a backlash on social media. One Twitter user said on September 29 — before the order issued by the Fairfax Circuit Judge — “This is preposterous. Borderline frivolous. Shame on @fcpsnews & @HuntonAK.”  

Elizabeth Schultz, a former FCSB member, explained that FCPS might use an outside law firm like Hunton Andrews Kurth in addition to in-house counsel because of how large the school system is, noting that in-house lawyers may not have the expertise for every case. But Schultz did wonder exactly why the district turns to outside help so often. 

“That was always my question ... because every time, of course, you’re going to outside counsel, you’re increasing the cost to taxpayers. So effectively, you’re using the taxpayers’ money against the taxpayers. You know, if you do something like you sue a parent, you are using that parent’s money to sue them,” she said. 

Schultz said that when she was a school board member, she attempted to get the board to put information released to people by FOIA on the board’s website to increase transparency. She said that once the initial requester got the information and it meets the needs of the request, that information is considered public. 

She also noted that, in the case of Tisler and Oettinger, it is the responsibility of FCPS “to decide what’s releasable under a Freedom of Information Act request” and that the two Fairfax County parents should not be responsible for the information they received. 

“That was your burden, you can’t shift a responsibility that you had to construe what is releasable and not, then fail in your duties, then decide, ‘Well, I released something that I shouldn’t have released,’ so now I’m going to sue the people I released it to once it’s already in the public domain. And so, I think this is an egregious action by the school system to try to deflect from the fact that they are the ones that committed the mistake in the first place,” Schultz said.

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