United States District Court, D. Kansas
N. Klein, Attorneys for Plaintiff
Sears, SHOOK, HARDY & BACON, L.L.P. Attorneys for
Severson, Fleeson, Gooing, Coulson & Kitch, L.L.C.
Attorneys for Defendant USD
J. Loquist, Attorneys for Defendant
AGREED ORDER FOR IN CAMERA REVIEW OF AUDIO
P. O'HARA, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's motion for
an order requiring defendants to submit two recording devices
to the Court for in camera review of the audio
recordings stored on one and to erase the other, and for such
further relief as the Court deems appropriate based on said
review. The parties appear by and through their counsel of
the parties represent and the Court finds that:
one occasion, Plaintiff sent her daughter, M.S., to school
with a recording device hidden on her person. Plaintiff
states that she took this action because she feared that M.S.
was being emotionally, verbally or physically abused. This
device was discovered and confiscated by school personnel on
November 27, 2017. On May 5, 2018, M.S. was found with
another recording device.
devices were confiscated by school personnel on and remain in
the possession of Defendant U.S.D. No. 266.
Plaintiff has asked for the return of the recording devices.
Plaintiff would like to listen to what is recorded on the
device, which was confiscated on November 27, 2017, to
determine whether it contains recordings that would
constitute relevant evidence.
Defendant U.S.D. No. 266 has declined Plaintiff's
request. Defendant is unable to access the recordings on this
device because it is locked by means of a PIN number known to
Plaintiff but unknown to Defendants. The other device is not
locked by a pin number, but Defendants have not accessed the
recordings on that device. Defendant is concerned that
recordings picked up by the devices may contain personally
identifiable information regarding students other than M.S.
of a character protected by the Family Educational Rights and
Privacy Act (FERPA), and that the return of the recordings to
Plaintiff would violate FERPA and/or invade the privacy
rights of other students and/or school staff. See, 20 U.S.C.
§ 1232g; 34 C.F.R. § 99.3 (definitions of
“education records, ” “personally
identifiable information” and
“disclosure”); K.S.A. 21-6104(a)(4). Defendants
further assert that even if the recordings do not contain
information protected by law, they should be given the same
access to recordings of events that took place at school as
is given to Plaintiff.
parties agree, subject to the Court's approval of this
order, that the Court should undertake an in camera
review of the recordings contained on the device confiscated
on November 27, 2017 to determine whether their disclosure to
Plaintiff or others would violate FERPA and/or the common law
privacy rights of students other than M.S. and their parents,
or school staff, or may violate said laws. The parties
request that the Court erase the recordings on the device
that was confiscated on May 5, 2018.
the Court concludes that the return of the November 27, 2017
recording device to Plaintiff will not violate the privacy
rights of other students or staff, and/or expose Defendants
to a claim that they have violated FERPA, the Court should
arrange for the preparation of a transcript of all of the
recordings on the November 27, 2017 device, to be provided to
defense counsel and Plaintiff's counsel, who will share
the transcription cost on a 50-50 basis. Upon the completion
of the transcript(s), the recording device may be ...