Update on Fairfax County School Board's Legal Action Against Parents

[This article was updated December 27, 2021, after first being published November 5, 2021, to include "Motion to nonsuit", "Defendants' Response to Plaintiff's Motion for Nonsuit", and "Order to Nonsuit".]

September 2021, Fairfax County School Board (FCSB) took legal action against me and fellow Fairfax County Public Schools (FCPS) parent Debra Tisler after we exercised in our First Amendment Rights.

October 6, 2021, the Virginia Department of Education (VDOE) issued a Notice of Complaint stating it opened an investigation into FCPS. (Read: "Virginia Department of Education to Investigate Fairfax County Public Schools for Systemic Privacy Violations") The focus is on systemic privacy violations. October 22, 2021, a hearing related to FCPS's legal action took place.

The following provides an update to the timeline I provided in the article "FCPS Threatens Legal Action Against Parents Who Exercised Their First Amendment Rights And Right To FOIA". You'll find more information on FCPS's history of breaches and failures to stop the breaches, information within the FOIA request that does not breach the privacy of children or FCPS staff — but to which FCPS is trying to prevent public access — the transcript for the October 22, 2021, hearing, the judge's court orders that followed, as well as more information about the ongoing case.

The breaches shared below are breaches about which other parents made me aware or which FCPS provided me with its responses to my FERPA and/or FOIA requests. They do not represent a comprehensive list of all of FCPS's failures to secure confidential information related to students, families, and teachers. Given FCPS continues to send me breaches, even though it knows I've submitted complaints about its breaches to VDOE on numerous occasions, that VDOE has found FCPS in noncompliance on numerous occasions, and that I've been so vocal about FCPS's repeat failures to secure confidential information related to students, families, and teachers, it is conceivable that other breaches have occurred, too. (Read: FERPA Violation Report Card: Fairfax County Public Schools)

Timeline

  • Between FY15 & FY17: FCPS violated the privacy of 6th grade students at Silverbrook Elementary School who received speech services.
  • June 10, 2016, FCPS FERPA Request Response: FCPS violated the privacy of two children attending West Springfield Elementary School.
  • July 21, 2016, FCPS FERPA Request Response: FCPS violated the privacy of two staff members working at Silverbrook Elementary School.
  • February 3, 2017: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • February 28, 2017: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • March 17, 2017: FCPS violated the privacy of a student and his parent.
  • June 7, 2017: Former Silverbrook Elementary School teacher Wilson Johnson contacted Former Silverbrook Elementary School Principal Melaney Mackin and told her he'd heard through the "grape vine" [sic] things about my family. She responded to his email, indicating she'd be in touch with him. This became another data point proving that Silverbrook Elementary School's history of privacy violations was continuing and that a grapevine sharing private information was in practice among the school's staff members.
  • June 8, 2017, FCPS FERPA Request Response: FCPS violated the privacy of 8 children attending Silverbrook Elementary School.
  • June 29, 2017: FCPS provided me a document related to a FCPS family that submitted a complaint to the Virginia Department of Education.
  • January 16, 2018, FCPS FERPA Request Response: FCPS violated the privacy of two students. One attended South County High School. The location of the second student's school wasn't listed, but his log-in and password to a program he was using, as well as his struggles, were listed.
  • January 17, 2018, FCPS FERPA Request Response: FCPS violated the privacy of 17 students attending different schools throughout FCPS. The internal document that is the source of the breach is titled "Hot Topics". (Read: “Hot Topics”) This breach indicates that an earlier breach occurred at Silverbrook Elementary School between FY15 & FY17 and that two breaches occurred at South County Middle School. Within the document, FCPS admits the following:

"Confidentiality of student records is a significant concern across the division."

  • January 29, 2018: In response to a Congressional Inquiry initiated by former Congresswoman Barbara Comstock, Superintendent Scott Brabrand stated the following:

"Ms. Oettinger shared her concerns about the Family Education Act (FERPA) violations by several FCPS school-based employees . . . Department of Special Services met with the school team to review the violations and to develop a plan to ensure these violations are not repeated."

  • November 7, 2018: Superintendent Scott Brabrand and I met in person and he questioned my statement that at that point, FCPS had provided me information on over 30 students and staff via FERPA and/or FOIA requests, even though I didn't request the information. I even provided him a copy of FCPS's internal "Hot Topics" report.
  • 2019: FCPS violated the privacy of 12 students attending Longfellow Middle School.
  • May 31, 2019: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • June 2, 2019: South County High School teacher Chris Walton forwarded private student-related information to her private email address on three occasions this day.
  • June 4, 2019: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • June 7, 2019: South County High School teacher Chris Walton forwarded private student-related information to her private email address.
  • August 2019: FCPS violated the privacy of one entire class of 6th grade students attending Silverbrook Elementary School, to include one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • October 1, 2019: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • October 24, 2019: FCPS violated the privacy of one of my children. FCPS did not threaten legal action against the individual to whom it gave my child's information. FCPS did not aggressively try to recover the breached information on behalf of my family.
  • April 8, 2020: Silverbrook Elementary School Principal Melaney Mackin breached the privacy of one of my kids.
  • April 23, 2020: FCPS violated the privacy of numerous students attending Orange Hunt Elementary School.
  • May 2020: FCPS violated the privacy of numerous students attending Silverbrook ES.
  • June 26, 2020: A day after being notified that VDOE found FCPS in noncompliance again, Jane Strong, director of the Office of Special Education Procedural Support, sent an email that states:

"We need to have a meeting to discuss our FERPA procedures and consider whether we will change our SOP."

  • June through October 2020: FCPS and two law firms with which it works, Sands Anderson and Blankingship & Keith, failed to secure personally identifiable information on seven occasions in just a four-month period during 2020.
  • July 2020: FCPS advised a hearing officer that it disabled the log-in requirement of its SEA-STARS program. This means anyone can go into the program and there's no log of who accessed information about students, what information was accessed, or when it was accessed.
  • August 2020: FCPS breached the privacy of over two dozen students attending Willow Oaks Elementary School. FCPS provided a FCPS parent documents related to her child and the mother found two spreadsheets listing personally identifiable information about children. One spread sheet students who have 504 plans and another is titled "Health Conditions" and shares students’ ID numbers, their classes, their grades, their gender, and their health conditions. Read: FERPA Violation: Willow Springs Elementary School Students' Privacy Violated - Special Education Action
  • September 11, 2020: FCPS announced that it had been hacked and that Maze stole private information from FCPS, to include "letters regarding disciplinary actions against 15 different students and their grades."
  • October 2020: FCPS breached the privacy of over 70 eighth graders attending Robinson Secondary School when it released a spreadsheet about them to a FCPS parent. The parent had filed for due process and FCPS emailed the parent a link to access files related to her child. Among the files, the parent found a spreadsheet that identifies 70+ students in the special education program, lists the students' first names, last names, student ID numbers, the classes in which they are enrolled, and the names of their teachers. Read: Robinson Secondary School Privacy Breach: FCPS Released Names, ID Numbers of Students Receiving Special Education
  • May 6, 2021: FCPS breached the privacy of another student.
  • May 17, 2021: FCPS met with a representative of the United States Department of Education (USDOE) Student Privacy Policy Office (SPPO). Among other things, they spoke about the confidentiality breaches for which FCPS is at fault, and for which VDOE has repeatedly found FCPS in noncompliance.
  • May 21, 2021: FCPS violated the privacy of numerous students attending South County High School.
  • June 2, 2021: The representative from USDOE SPPO, who spoke with FCPS on May 17, 2021, emailed me that FCPS was found in noncompliance and that FCPS assured her that FCPS staff had received FERPA training.
  • June 24, 2021: FCPS violated the privacy of another student.
  • June 29, 2021: FCPS violated the privacy of thousands of students attending South County High School.
  • August 12, 2021: Debra Tisler filed a FOIA request with FCPS for "all outsourced counsel legal services invoices and paid legal services invoices from June 1, 2020, to August 12, 2021.
  • August 30, 2021: FCPS "invoked" an extension to respond to Debra Tisler's August 20, 2021, FOIA request.
  • September 2021: FCPS violated the privacy of a student attending Chesterbrook Elementary School.
  • Sept 10, 2021: FCPS FOIA Officer Molly Shannon emailed Debra Tisler a link to the first set of records that were responsive to Debra's request and Debra shared the link with me. In the email she specifically advised Debra of the following:

"Responsive record set 1 is being transmitted via Drobox at the link below. Please download a copy of the records for your use. Please note that the Dropbox link to the records will expire 60 days from September 10, 2021. Please be advised that records were redacted in part pursuant to Va. Code § 2.2-3705.1(2) (attorney client privileged communications.)"

  • September 13, 2021: FCPS FOIA Officer Molly Shannon again emailed Debra, this time with a second link, which Debra again shared with me. She advised Debra of the following:

"A second production was finalized this morning and is being provided to you via the Dropbox link below."

  • September 14, 2021: According to FCPS's October 25, 2021, response to the investigation VDOE later opened, on September 14, 2021, the following occurred.

"Howard Belkowitz of Belkowitz Law PLC in Fairfax sent email to John Cafferky, Blankingship & Keith (outside counsel for FCPS) with a screenshot of a legal invoice, generally alerting that confidential information had not been redacted."

*Neither Debra nor I provided the FOIA response to Harold Belkowitz. We do not know how he obtained it.

  • September 15, 2021: According to FCPS's October 25, 2021, response to the investigation VDOE later opened, on September 15, 2021, the following occurred:

"Belkowitz email forwarded to FCPS Office of Division Counsel".

  • September 17, 2021: According to FCPS's October 25, 2021, response to the investigation VDOE later opened, on September 17, 2021, the following occurred:

"Letter from E. Kennedy to D. Tisler"

"Email from J. Cafferky to H. Belkowitz"

"Letter from E. Kennedy to H. Belkowitz"

As of the posting of this article, it is unknown whether Harold Belkowitz responded to the email and letter, nor is it known if FCPS took legal action against him or if it came to an agreement with him.

In addition, I continued to contact the parents, teachers, and lawyers that I could track down, who were mentioned in the documents. Debra reached out as well. We both believe that people whose information has been breached should be made aware of the breach.

Although the documents had been released two weeks prior, none of the individuals with whom we spoke had been contacted by FCPS about the breach.

According to FCPS's October 25, 2021, response to the investigation VDOE later opened, on September 24, 2021, the following occurred:

"FCPS delivers corrected, properly redacted sets of invoices to D. Tisler."

  • September 25, 2021: Someone came to my home and started banging on my door. I was in the bathroom and stepped out in time to see the car drive up my pipestem driveway when I was walking downstairs. I thought it was an overly aggressive Amazon delivery person, finished walking downstairs, looked out the window and didn’t see anything on our steps. Later that day, someone started banging again. Again, I didn’t make it to the door in time to open it, but I saw the same car. That’s when I started thinking we were being harassed.
  • September 26, 2021: Debra and I filed a joint state complaint to the Virginia Department of Education (VDOE) requesting that VDOE investigate FCPS for noncompliance related to FERPA regulations under IDEA, and that it specifically initiate a systemic investigation related to FERPA violations. We forwarded VDOE both of the files that FCPS provided to Debra.

Later that day, my daughter was home alone when a “scary man” started banging on the door. She ran up to her bedroom and started recording him and called me. She said he was banging, looking in windows, and taking pictures of our home. I raced home and called the police after I saw her video. I called the police because I recognized the car. It was the same car from the day before.

My daughter got the guy's tags and the police ran the tags. I explained to the police what I thought was occurring. I was advised by the policeman that I have a right to say whatever I want, that I wasn't doing anything wrong. He said, too, that if we found anything in the documents that should be investigated, that we should bring it to the police station so that it could be given to a detective for investigation.

My son came home soon after and came through the front door, although we all usually use the garage. He parks closer to the door and happened to see something on it. He found a letter duct taped to the front door. He found a small plastic bag attached to the door handle with a letter in it, too.

The letter on the handle was from Ellen Kennedy of FCPS. The letter duct taped to the door – which ripped a large swath of paint off my door that I would like FCPS or Hunton Andrews Kurth to fix – was from FCPS’s law firm Hunton Andrews Kurth.

Click on image below to view document in full.

Click on image below to view document in full.

I contacted Debra and described the car and the man in the video and she said she had seen it, too, hanging around her home. She doesn't use her front door often either and she too found a letter.

Click on image below to view document in full.

We both contacted elected officials and journalists to make them aware of what was occurring.

  • September 27, 2021: In addition to our efforts to continue to track down individuals in the documents and make them aware of the breach, I spoke with the Fairfax County Federation of Teachers (FCFT) and expressed my concerns that FCPS had shared extraordinarily sensitive information about FCPS teachers, to include grievances they filed, investigations into them, and dismissals.

At 3:15 PM, FCSB filed a Complaint for Injunctive Relief and Damages.

However, according to FCPS's 10.25.21 response to the investigation VDOE later opened, FCPS, not FCSB, filed the "Complaint for Injunctive Relief and Damages". In addition, according to FCPS's response to VDOE, the "Complaint for Injunctive Relief and Damages" was not filed September 27, 2021. Instead, FCPS stated it was filed a day later, on September 28, 2021.

Click on the image below to view the entire complaint in full.

That evening I found a phone message from Ryan Bates who called me Sunday at 4:58 pm and left a message for me to call him.

FCPS has yet to answer my emails on how it will ensure my son's computer doesn't shut down on him when he takes the SAT exam again, yet Ryan Bates wanted me to call him immediately on a Sunday evening. See: FCPS Tech Problems Continue: FCPS Computer Shuts Down During SAT Exam, Fairfax County Public Schools Isn’t Able To Prevent Student Computers From Shutting Down, and College Board’s Practices: Hardships, Hurdles & Headaches For Students Who Have Disabilities

  • September 28, 2021: Debra and I contacted VDOE and requested that our state complaint be amended to include retaliation from FCPS. We'd done nothing wrong in exercising our First Amendment Rights, or in sharing a FOIA response that FCPS itself stated was in response to the FOIA request submitted by Debra.

Later in the day Debra and I found out someone posted all of the FOIA response documents to Fairfax Underground — without adding any redactions to prevent publicly identifiable information (PII) about children and FCPS personnel files from being shared. Contact was renewed to make individuals mentioned the FCPS's FOIA response aware that 1) the documents revealing PII had been posted to Fairfax Underground and 2) that we didn't post them.

At 5:12 PM, FCSB counsel Ryan Bates emailed the "Complaint for Injunctive Relief and Damages". He waited until the end of the day to email it, even though it had been filed more than 24 hours prior. He stated his plan to appear September 30, 2021, at 8:30 AM before the Calendar Control Judge, which left just one full business day for me and Debra to secure counsel to appear with us.

Debra and I submitted documents filed on behalf of FCSB to VDOE, as additional proof of FCPS admitting that it violated the privacy of students.

Late afternoon, The Daily Wire published an article written by Luke Rosiak. See: "McAuliffe-Linked Law Firm Billed $700 An Hour Fighting Parents Of Special-Needs Children"

September 29, 2021: The Daily Wire published another article written by Luke Rosiak. See: "Fairfax Schools Sues Special-Ed Parents, Demanding ‘Damages’ For Publicizing Embarrassing Records The Schools Gave Them"

  • September 30, 2021: Debra and I attended the meeting with the Calendar Control Judge. The hearing was set for October 22, 2021. The judge ordered that Debra and I not "further distribute the FOIA materials".

And yet . . . according to FCPS's 10.25.21 response to the investigation VDOE later opened, on this day,

"FCPS obtained a Temporary Restraining Order directing Complainants Oettinger and Tisler to cease disseminating any of the information and that they remove any internet posts containing the information."

Click on the image below to view the Calendar Control Order in full.

Ironic (and odd): Although FCPS maintained that the privacy of children and staff was the reason it wanted me to remove the documents, none of the documents I posted violated the privacy of children or staff—and FCPS did not ask that I be ordered to remove all the other breaches I'd previously published to this site (after heavily redacting them first).

The titles of the articles I posted, which contained documents FCPS wanted taken down (which I've been told can still be accessed via the Wayback Machine) are titled "Fairfax County Public Schools: Please Explain 'Misuse of Bond Proceeds'”, "Fairfax County Public Schools: Please Explain Why You Are Paying Outside Counsel $625/Hour To Write Motions For School Board Members And To Review FOIA Requests", and "Fairfax County Public Schools: Please Explain Your 'HIPAA Compliance Concerns'”. Do any of these sound like they are focused on children and staff personally identifiable information?

Timothy Sandefur, Vice President for Litigation for the Goldwater Institute, and Ketan Bhirud, counsel with Troutman Pepper, both of whom represent me and Debra, filed a "Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Injunction and in Support of Immediate Dissolution of September 30 Order".

Click on image below to review document in full.

  • October 15, 2021: FCSB outside counsel filed "Fairfax County School Board's Reply Memorandum in Support of Motion for Preliminary Injunction".

Click on the image below to view the document in full.

  • October 22, 2021: Hearing held. At the end of the hearing, Judge Richard E. Gardiner indicated he needed more time before making a decision.

Click on the document below to view the transcript in full.

Later that same day, Judge Gardiner entered an order stating the following:

"Ordered that Defendants provide the court, as to each redaction, with their position why such redaction is not legally justified by Friday, October 29. 2021."

Click on the image below to view Judge Gardiner's order.

  • October 25, 2021: In-house FCPS Attorney Ellen Kennedy submitted FCPS's response to the investigation VDOE initiated, which is focused on systemic privacy violations.

Click on the image below to view FCPS's response to VDOE's investigation in full.

Click on the image below to view the chronology included with FCPS's response to VDOE's investigation in full.

  • November 3, 3021: Sona Rewari, who is an attorney with Hunton Andrews Kurth LLP and who is an attorney representing FCSB, submitted a "Motion To Strike Defendants' Response To October 22, 2021 Order".

Click on the image below to view the document in full.

Timothy Sandefur, Vice President for Litigation for the Goldwater Institute, and Ketan Bhirud, counsel with Troutman Pepper, both of whom represent me and Debra, submitted "Defendants' Response to Plaintiff's Motion to Strike".

Click on the image below to view the document in full.

  • November 4, 2021: Judge Richard E. Gardiner filed an order that states that "Defendants have provided the court with their position pertaining to each redaction" and orders that "all parties appear via phone or live before Judge Gardiner on Tuesday, November 16, 2021 at 10:00 AM."

Click on the image below to view the document in full.

November 16, 2021: Judge Richard E. Gardiner struck down the FCSB's unconstitutional attempts to silence me and Debra and removed the order signed September 30, 2021, by Judge David A. Oblon.

Click on the image below to view Judge Gardiner's order in full.

Click on the image below to view the transcript for the 11.16.21 hearing in full. 

11.24.21: FCSB filed a "Motion for Nonsuit".

Click on document below to view FCSB's "Motion to Nonsuit" at a larger size.

12.1.21: Timothy Sandefur, Vice President for Litigation for the Goldwater Institute, and Ketan Bhirud, counsel with Troutman Pepper, both of whom represent me and Debra, submitted "Defendants' Response to Plaintiff's Motion for Nonsuit".

Click on document below to view "Defendants' Response to Plaintiff's Motion to Nonsuit" at a larger size.

12.15.21: Judge Richard E. Gardiner signed "Order to Nonsuit".

Click on document below to view "Order to Nonsuit" at a larger size.

12.21.21: "Order to Nonsuit" forwarded to attorneys.

One Of These Things Is Not Like The Other

FCPS's Attempts to Contact Me and Debra:

10.22.21, Ryan Bates: FCPS made "a dozen attempts to get this information back . . . "

10.25.21, Ellen Kennedy: "FCPS counsel made at least eight attempts to contact Ms. Tisler . . . counsel made similar, repeated efforts to contact Ms. Oettinger for purposes of securing the prompt return . . ."

10.25.21, FCPS Chronology: FCPS supposedly contacted Debra and me, but can't agree on the amount of times.

Reality: Definitely not a dozen times.

What Was Posted to This Site

10.22.21, Ryan Bates: "As far as we can tell, and I believe as -- as to what was posted on the website, I think it was less than 1000 was actually posted on the website. And from what we can tell, they redacted all of the student names, and we appreciate that."

10.25.21, Ellen Kennedy: "Ms. Oettinger posted 103 pages of the improperly redacted invoices on her website (https://specialeducationaction.com/) on September 25, 2021, along with multiple, related posts in the days that followed."

Reality: I did not post any publicly identifiable information about children to this site. I redacted all of the pages I did post to this site in advance of posting them. None related to children. I posted a list of rates for Ryan Bates and crew, documents related to various school board member matters, documents related to various superintendent matters, information about misuse of bond funds, and concerns about HIPAA violations.

When Did FCPS Really Make Parents Aware of the Breach?

10.25.21, Ellen Kennedy: "In the days following notice of the mistaken disclosure, FCPS counsel conducted a full review of the 1.316 pages of invoices . . .We performed this task on an expedited basis for purposes of fulfilling FCPS's obligations to notify parents of all students whose information was disclosed in error."

The Reality: FCPS did not reach out to all families about the breaches within even two weeks of the breach. Some families didn't receive formal notice until VDOE made them aware of the breach.

Retaliation

10.25.21, Ellen Kennedy: "While the Complainant has characterized these actions as retaliation, they were instead one of the numerous attempts that FCPS has made to address the inadvertent disclosure and reduce the impact to families and staff."

The Reality: If FCPS's action aren't retaliation, why didn't it take legal actions after all its previous breaches?

Since 2017, FCPS has repeatedly breached the privacy of my family, yet it never took legal action against individuals to whom it gave my family's information, in an effort to "reduce the impact to [my family]." In addition, I've been sharing information about FCPS's breaches for years (after first redacting PII). Never once has FCPS taken legal action against me on those occasions.

FCPS has failed to secure confidential information related to Debra's family, too. Never once has FCPS taken legal action against individuals to whom it gave her family's information, in an effort to "reduce the impact to [her family]." In fact, one of FCPS's breaches involved FCPS providing me a transcript related to Debra's family. FCPS did not proactively make Debra aware of the breach. Instead, she had to contact FCPS and state she knew FCPS had breached her family's privacy.

If FCPS was concerned about the impact to families and staff, it would have either 1) stopped all the breaches back in 2015 (or before) and/or 2) acted in a similar manner and taken legal action previously and/or 3) taken actions on behalf of my family and Debra's family to "reduce the impact to [our families]" after FCPS's many breaches of our families' privacy.

Other Differences

There are other differences, too, which I'll continue to add moving forward.

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