Gen. 65 65
EDUCAT ION
P UBLIC S CHOOLS

) C HILD A BUSE I NVESTIGA TIONS

) P ERSONNEL

) P UBLIC I NFORMATION A CT

) D ISCLOS URE TO P ARENTS O F I NAPPROPRIATE R ELATI ONSHIP B ETWEEN T EACHER AN D S TUDENT

September 19, 1997

The Ho nora ble Jo seph M. Getty House of D elegates
You have requ ested o ur op inion a bou t a pub lic sch ool’s obligation to noti fy t

he parent s of a st

udent when it

learns of a potenti al romantic relationshi p b et we en a te ache r and a stud ent. Sp ec ifi ca lly, you as k whether a schoolsys tem is r equired t o notify the parents of a student

under thes e circ umstances and, if so, whether it mus t do so with in a parti cular time frame. You also ask whether the legal obligations of t he school s yst em are affect ed if t he student is 18 years of age or older.
Our opinion i s as fol lo ws : If t he sit uation involves an invest igati on of

alle ged chil d abuse by

a teacher , the paren ts shou ld be told of t

he sit uation wit

hin 24 hours. The responsi bili ty for notifi cati on, however, li es with t he localdepar tme nt of soci al servi ces (“loca l depart ment”) or t

he p olice department , not t he school sy stem

. If ther e is no i ssue of chi ld abuse, a school s yst em may notify pare nts of

the obser

ved circ umstances conc erning t he student’s beha vior o r other stude nt-orien ted inform ation, w ithout, how ever, discl osing informat ion from the teacher’s pe rsonnel record. These conclusi ons apply whether or not

the st udent has reached t

he age of 1 8.

I Background According to pr es s a cc ou nt s, t w o ye ar s ago a cus todian at a high school i n CarrollCounty s aw a female stude nt a nd a m ale teacher together one evening at the school. The cust odian w as suff iciently concern ed abo ut the situ ation to notify the princip al.66 [82 O p. Att’y

1 FL §§5-704 is applicable to “e ducators,” a mong other profess ionals.

2 A general

account of the circumstances under which a teacher may be charg ed with ch

ild abuse may be

found in 82 Opinions of the Attorney General 58 (1997). A pp ar en tly, the schoolsys tem investigate d to dete rmine whether the teacher had violated schoolsys tem poli cies pr ohi biti ng inapp ropria tely personal rela tions hips bet ween teac hers and stude nts

. The paren ts of th e stud ent w ere no t prom ptly notifie d of the custodi an’s obser

vation or of the schoolsys tem’s r esponse.
When th e p arents late r found out about the inc ident, they expresse d deep co ncern to the Bo ard of E duca tion of Carr oll Co unty that they had not been promptl y not ifie d. As the board under took a revis ion of its p olicy on te acher-s tudent r elat ionshi ps, t he issue of pa ren tal notifi cati on took on great er si gnific ance. Your opi nion req uest seek s clarific ation o f the c ircum stance s und er w hich S tate law requires or authori zes parent s to be not ifie d of an inci dent evidenci ng wh at ma y be their c hild’s in appr opriate relation ship w ith a tea che r.

II
Parenta l Noti fic ati on of Chil d Abuse All egati ons
If the nat ure of a relations hip between a t eacher anda student
causes an observer

to have “r eason to bel ieve that a chi ld has been subject ed to .. . abuse . .., ” the obser ver has a l egal duty t o report the inci dent t o the loc al department of soc ial s ervice s or a l aw enforcementagen cy. §§5-7 04 an d 5-7 05 o f the F amily Law (“FL”) Articl e, Maryland Code. 1 “Abuse” includ es “se xual a buse of a c hild ....” FL §5- 701 (b)(2 ). A “chil d” is anindivi dual under t he age of 18. FL § 5-701(d ). 2

As we wrote in a lengthy opinion so me years ago, the prim ary respo nsibility for inves tigating a llege d child a buse bya school sys tem employe e is t

hat of the local department and the pol ice. 76 Opinions of the Attorney General 220 (1991). Although a school syst em may conduct

its own internalpersonnelinvest igati on o fGen. 65 67
alle ged ch ild ab us e b y an em pl oye e, i t m ay do so only under limi tati ons intend ed to assure t he primacy

of the i nvesti gation by

the local depa rtmen t a nd t he polic e. 76 Opinions of the Attorney General220 , 221

. Among other things , we advised t hat the school sys tem shou ld no t “interv ie w the victi m of the all eged abuse, the alle ged abuser, or any pot entia l witnes s without the pri or consent

of the local [department] or t he polic e.” 76 Opinions of the Attorney General220, 221-22. We also advise d the school sy stem to “ke ep confident ial any info rmatio n abo ut the a lleged chil d abuse that it learns during t

he course of i ts i nternalinvest igati on.” Id

. Although the sch ool system shou ld no t disclos e to pa rents informat ion that i t mayhave lear ned ab ou t al leg ed ch ild ab us e b y a teacher, notifi cati on to the parents will oc c ur by different means. Under FL §5-706(b)(2) , withi n 24 hours aft er rece iving a report of abuse, t he local department or law enforcement agency must “att empt to have an on- sit e inte rview with t he chil d’s c areta ker .” This inter

view would undoubtedl y ent ail di scl osure about the inc ident between teac her and st udent that gave ri se to t he invest igati on.
A child abuse invest igati on may concer n a student

who, at the ti me of the i nvesti gation, is 18 y ears of age or olde r. I n 78 Opinions of the Attorney General 1 89 (1 993 ), we c onclu ded th at the c hild ab use report ing law appl ied whenever t here was reas on to beli ev e that child abuse had occurre d in the pa st, even if, when the inci dent
came to light, the alleged victim w as no long er a child. Thus, even if a student

is 18 y ears of age or older , the conclusi on stat ed above

) that responsibility for d isc ussing the situa tion w ith the p arents rest s with the local department or law enforce ment agency , notthe
sc hoo l s y st em
) wo uld app ly.

III
Parenta l Noti fic ati on Apart From Chil d Abuse All egati ons Under som e circu mstan ces, co ntact b etwee n a teacher and a student may not gi ve ris e to rea son to beli eve that a buse has occur

red but might be grounds for dis cipline of the t eacher. For example, as noted in Part I above, t

he CarrollCounty s chool sys tem has a pol icy prohibi ting inappropr iate ly personalrelationshi ps between teachers and stud ents , eve n if th e rela tion ship is no t sex ual.68 [82 O p. Att’y
If no i nv esti gation of

alle ged chil d abuse is under way, the school sys tem is not

constr ainedby the co nside rations discu ssed in Part II above. A school sy stem, however , does not have unfett ered discr etionto di scl ose infor mation about

its invest igati on of an inapp ropria te relationship betw een a teach er and a stud ent. Rather, anydisclos ures m ust be tail or ed to com ply with a statutory prohibi tionagainst

discl osur e “of a personne l recor d of an ind ivid ual.” §10-616(i )(1) of the Stat e Government (“SG”) Arti cle. The text of this prohibit ion is as foll ows:

(1) Subject

to paragr aph (2 ) of this subsect ion, a custodi an shalldeny i nspecti on of a personnelrecord of an indivi d ual, including an appli cati on, perfor mance rati ng, or schol asti c achievement informat ion. (2) A custo dian s hall p ermit inspecti on by: (i) the pers on in int erest ; or (ii) an elect ed or appoint ed offici al who supe rvises th e w ork o f the in dividu al.
“The o bvious purpos e of [SG §10-616(i) ] is t o preser ve t h e pri vacyof p erson al info rmatio n abo ut a pu blic em ployee th at i s accumulate d during h is or he r employment .” 65 Opinions of the AttorneyGe neral365 , 367 (19 80)

. See also 68 Opinions of the AttorneyGeneral335, 33 8 (19 83) . Th e term “pe rson nel r eco rds,”
w e have explai ned, i ncludes “not only the paper s contai ne d in th e employee’s offici al pers onnel fi le . .. but also paper s rel ating t o a personnelmatter

in the han ds of a n a uthoriz edcu st odi an
.. .. No custodi an may permit access to such r ecords ot her than t o a person or persons per

mitt ed access by

law.” 78 Opinions of

the Attor ne

y General291 at 293 (199 3). In tha t opinio n, w e con clude d that a complaint

of improper

behavior l odged against employe es of

a court cl erk’s office was a “per sonnel r ecord” that coul d not be mad e public. That conclus ion appli es squa rely here. A schoolsys tem may not discl ose to par ents t

he cont en ts of

a tea che r’s “p erso nne l reco rd.”Gen. 65 69

3 The opi n ion about the clerk’s office employ ees, for example, concer ned written documentation of allegedly improper conduct. 78 Opinions of

the Attorney General

291, 292-93.

4 The definition of “education records” in the fe d eral Family Educational Rights an

d Privacy

Act of 19 74 likewis e focus es on documentary

material maintained by a school. Se e 20 U.S .C. §1232g(a)(4)(A). See gen erally Belanger v. Nashua, Ne w Hampshir

e School Dist. , 856 F . Sup p. 40, 49 (D. N.H. 1 994) ( recit ing legi s lative history). In any

eve nt, parents have a right of access to their c hild’s education r ec ords, at least if the child is under 18 y ears of age. See20 U.S.C. §1232g(b)(1)(H) and (d). De spite its br ead th, the prohibi tion aga inst discl osure of “per son nel records” d oes not bloc k all disclosure. First, the term “rec ord ” is lim ited t o “d ocu me ntar y mate rial.” SG §10-61 1(f)(1). 3 First -hand obs erva ti ons , b y co ntra st , are not “r ec or ds .” As we pointed out in anot

her opini on, “obser

vable fac ts tha t exist indep ende ntly of .. . a ‘r ecord .. .’” were not within t he scope of a statute prohibi ting di sclosur e of cert ain juve nile “ records .” 7 8 Opinions of

the AttorneyGeneral240 , 243 (19 93) . Th erefore , a school system h as the d iscretion to tell par ents wha t observers have
seen or heard about

a stude nt’s be havior, including observed behavior invo lving a teach er. Th is is not dis closur e of a “personne l
reco rd,” even if t

he observat ions ar e subsequent ly reducedto writ ing and bec ome a “rec ord .” 4 A school sy stem might , for example, establisha procedure requir ing an immediate oralreport to a school administ rator of any apparent vi olati on of the policy ba rring in timate relations betw een a teach er and a stud ent. Assuming that the report does not suggest

possibl e chil d abuse, t he admi nistrator

may the n notify the pa rents o f the re port, be caus e the in form ation a bou t their chi ld u ndo ubted ly wou ld be im portan t to the p arents . This procedu re would be separat e from an y process orien ted towa rd potenti al employe e discipline and would not inv o lve dis closur e of the c ont ents of a “pe rson nel r eco rd.”
Second , even after

a school s yst em receives or creat es “docu mentary materi al” that would be, under the l aw, a confidential “personnelrecord,” the sc hoo l system m ay still have discre tion to disclose some information to parents. I f, for e xample, a s chool sys tem recei ves infor

mation about

a student

during t he cou rse o f a personnelinvest igati on of a teacher , the school syst em may disclose that student

- relat ed informat ion, s o long as i t pres erves t he70 [82 O p. Att’y

5 In exceptional cases, a school sy

stem’s common law du

ty to protect a student from h arm might even require disclosure to pare nts of informat ion derived from a

“personnelrecord .” Disclo sure, und er those circumst ances, might well be viewed by the courts as “otherwise provided by law.” SG §10-616(a). In a n opinion that necessarily is limited to general guidance, however, we c annot speculate about the pa rticu lar circumstances that might justify this additional degree of disclosure. con fiden tialityof em ployee-related inform ation derived f ro m a “pe rson nel r eco rd.”
We acknowledge that these distincti ons
) between an oral report and a writt en one, and bet ween student- relat ed and employe erelat ed informat ion

) seem arti fici al and m ay be hard to ad minister. Nevertheless, they

are dis tinctions i ntendedto reconc ile, as be st we can, the prohibiti on on discl osure of “per sonne l record s” and the need to preser

ve as wide a zone of dis creti on for school offici als as possibl e.
A school sy stem has “ a spe cial du ty to exercise reaso nable care to protect

a pupil f rom harm.” Lumsford v. Board of Educ. 280 Md. 665, 676 , 374 A.2 d 11 62 ( 197 7). See also Coll ins v. Board of Educ ., 48 Md. App. 213, 218, 426 A.2d 10 (1981) (s chool authorit ies have
a common law duty, “as the t emporary custodi an o f ch ildren, to exercise reasonabl e care for their protection”). A stude nt’s involvement

in an ina

ppropri at ely personalrelationshi p with a teacher may fore shadow sexual i nvolvement or some other s erious sit uationrequir ing swift

parenta l inter

vention t o protect

the st udent from psych olo gica l or p hysica l har m. Cf. E is el v. Boa rd of Educ ., 324 M d. 376 , 597 A .2d 44 7 (19 91) (d uty to info rm p arents of report of student ’s sui cidal stat ements). Despite t he barr ier of t

he “personnelreco rds” con fide ntial ity law , a school sys tem does have room to make the di sclosur es that will help safeguard chi ldren. 5

IV
Conclusion In summary, our opinion is as foll ows:Gen. 65 71
1. If there is re ason to belie ve that a chil d has been subj ected to child abuse by a t eacher, the schoolsys tem should not notify the parents. The local de partment or law enf

orcem ent ag ency is responsible for doi ng so.
2. If there ha s been no all egati on of chil d abuse but i nstead
a report suggesting an inappropr iate ly personalrelationshi p between
a teacher and a student , the scho ol system may pro vide im med iate notice to parent s of observe d behavior involving the student or other student -ori entedinfo rma tion

. The s cho ol sy st em, however, maynot disclose the content s of documents cr eated or recei ved in the course of a personnelinvest igati on of the te acher or ot

her pers onnel rec ords per taini ng t o th e tea che r.

J. Joseph C urran, Jr. AttorneyGeneral
Jack Sch wa rtz Chief Counsel Opinions and Advic e