Section 118.125. Pupil records.

 

(1)   Definitions. In this section:

(a) “Behavioral records" means those pupil records that include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil's behavior, tests relating specifically to achievement or measurement of ability, the pupil's physical health records other than his or her immunization records or any lead screening records required under s. 254.162 , law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) (b) 2. or (c) 3. , and any other pupil records that are not progress records.

(b) “Directory data" means those pupil records which include the pupil's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received and the name of the school most recently previously attended by the pupil.

(be) “Law enforcement agency" has the meaning given in s. 165.83 (1) (b) .

(bL) “Law enforcement unit" means any individual, office, department, division, or other component of a school district that is authorized or designated by the school board to do any of the following:

1. Enforce any law or ordinance, or refer to the appropriate authorities a matter for enforcement of any law or ordinance, against any person other than the school district.

2. Maintain the physical security and safety of a public school.

(bs) “Law enforcement unit records" means records maintained by a law enforcement unit that were created by that law enforcement unit for the purpose of law enforcement.

(c) “Progress records" means those pupil records which include the pupil's grades, a statement of the courses the pupil has taken, the pupil's attendance record, the pupil's immunization records, any lead screening records required under s. 254.162 and records of the pupil's school extracurricular activities.

(cm) “Pupil physical health records" means those pupil records that include basic health information about a pupil, including the pupil's immunization records, an emergency medical card, a log of first aid and medicine administered to the pupil, an athletic permit card, a record concerning the pupil's ability to participate in an education program, any lead screening records required under s. 254.162 , the results of any routine screening test, such as for hearing, vision or scoliosis, and any follow-up to such test, and any other basic health information, as determined by the state superintendent.

(d) “Pupil records" means all records relating to individual pupils maintained by a school but does not include any of the following:

1. Notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under s. 115.28 (7) to hold a certificate, license, or permit if such records and notes are not available to others.

2. Records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

3. Law enforcement unit records.

(e) “Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics.

(2)   Confidentiality and disclosure of pupil records. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (q) and sub. (2m) . The school board shall adopt policies to maintain the confidentiality of such records and may adopt policies to promote the disclosure of pupil records and information permitted by law for purposes of school safety.

(a) A pupil, or the parent or guardian of a minor pupil, shall, upon request, be shown and provided with a copy of the pupil's progress records.

(b) An adult pupil or the parent or guardian of a minor pupil shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

(c)

1. The judge of any court of this state or of the United States shall, upon request, be provided by the school district clerk or his or her designee with a copy of all progress records of a pupil who is the subject of any proceeding in such court.

2. Names of dropouts shall be provided to a court in response to an order under s. 118.163 (2m) (b) .

(cg) The school district clerk or his or her designee shall provide a law enforcement agency with a copy of a pupil's attendance record if the law enforcement agency certifies in writing that the pupil is under investigation for truancy or for allegedly committing a criminal or delinquent act and that the law enforcement agency will not further disclose the pupil's attendance record except as permitted under s. 938.396 (1) (a) . A school district clerk or designee who discloses a copy of a pupil's attendance record to a law enforcement agency for purposes of a truancy investigation shall notify the pupil's parent or guardian of that disclosure as soon as practicable after that disclosure.

(ch) The school district clerk or his or her designee shall provide a fire investigator under s. 165.55 (15) with a copy of a pupil's attendance record if the fire investigator certifies in writing that the pupil is under investigation under s. 165.55 , that the pupil's attendance record is necessary for the fire investigator to pursue his or her investigation and that the fire investigator will use and further disclose the pupil's attendance record only for the purpose of pursuing that investigation.

(ck) The school district clerk or his or her designee shall make pupil records available for inspection or, upon request, disclose the contents of pupil records to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under ch. 980 , if the pupil records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning pupil records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980 .

(cm) If school attendance is a condition of a child's dispositional order under s. 48.355 (2) (b) 7. or 938.355 (2) (b) 7. , the school board shall notify the county department that is responsible for supervising the child within 5 days after any violation of the condition by the child.

(d) Pupil records shall be made available to persons employed by the school district which the pupil attends who are required by the department under s. 115.28 (7) to hold a license, law enforcement officers who are individually designated by the school board and assigned to the school district, and other school district officials who have been determined by the school board to have legitimate educational interests, including safety interests, in the pupil records. Law enforcement officers' records obtained under s. 938.396 (1) (c) 3. shall be made available as provided in s. 118.127 . A school board member or an employee of a school district may not be held personally liable for any damages caused by the nondisclosure of any information specified in this paragraph unless the member or employee acted with actual malice in failing to disclose the information. A school district may not be held liable for any damages caused by the nondisclosure of any information specified in this paragraph unless the school district or its agent acted with gross negligence or with reckless, wanton, or intentional misconduct in failing to disclose the information.

(e) Upon the written permission of an adult pupil, or the parent or guardian of a minor pupil, the school shall make available to the person named in the permission the pupil's progress records or such portions of the pupil's behavioral records as determined by the person authorizing the release. Law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) (b) 2. or (c) 3. may not be made available under this paragraph unless specifically identified by the adult pupil or by the parent or guardian of a minor pupil in the written permission.

(f) Pupil records shall be provided to a court in response to subpoena by parties to an action for in camera inspection, to be used only for purposes of impeachment of any witness who has testified in the action. The court may turn said records or parts thereof over to parties in the action or their attorneys if said records would be relevant and material to a witness's credibility or competency.

(g)

1. The school board may provide any public officer with any information required to be maintained under chs. 115 to 121 .

2. Upon request by the department, the school board shall provide the department with any information contained in a pupil record that relates to an audit or evaluation of a federal or state-supported program or that is required to determine compliance with requirements under chs. 115 to 121 .

(h) Information from a pupil's immunization records shall be made available to the department of health services to carry out the purposes of s. 252.04 .

(hm) Information from any pupil lead screening records shall be made available to state and local health officials to carry out the purposes of ss. 254.11 to 254.178 .

(i) Upon request, the school district clerk or his or her designee shall provide the names of pupils who have withdrawn from the public school prior to graduation under s. 118.15 (1) (c) to the technical college district board in which the public school is located or, for verification of eligibility for public assistance under ch. 49 , to the department of health services, the department of children and families, or a county department under s. 46.215 , 46.22 , or 46.23 .

(j)

1. Except as provided under subds. 2. and 3. , directory data may be disclosed to any person, if the school has notified the parent, legal guardian or guardian ad litem of the categories of information which it has designated as directory data with respect to each pupil, has informed the parent, legal guardian or guardian ad litem of that pupil that he or she has 14 days to inform the school that all or any part of the directory data may not be released without the prior consent of the parent, legal guardian or guardian ad litem and has allowed 14 days for the parent, legal guardian or guardian ad litem of that pupil to inform the school that all or any part of the directory data may not be released without the prior consent of the parent, legal guardian or guardian ad litem.

2. If a school has notified the parent, legal guardian or guardian ad litem that a pupil's name and address has been designated as directory data, has informed the parent, legal guardian or guardian ad litem of the pupil that he or she has 14 days to inform the school that the pupil's name and address may not be released without the prior consent of the parent, legal guardian or guardian ad litem, has allowed 14 days for the parent, legal guardian or guardian ad litem of the pupil to inform the school that the pupil's name and address may not be released without the prior consent of the parent, legal guardian or guardian ad litem and the parent, legal guardian or guardian ad litem has not so informed the school, the school district clerk or his or her designee, upon request, shall provide a technical college district board with the name and address of each such pupil who is expected to graduate from high school in the current school year.

3. If a school has notified the parent, legal guardian or guardian ad litem of the information that it has designated as directory data with respect to any pupil, has informed the parent, legal guardian or guardian ad litem of the pupil that he or she has 14 days to inform the school that such information may not be released without the prior consent of the parent, legal guardian or guardian ad litem, has allowed 14 days for the parent, legal guardian or guardian ad litem of the pupil to inform the school that such information may not be released without the prior consent of the parent, legal guardian or guardian ad litem and the parent, legal guardian or guardian ad litem has not so informed the school, the school district clerk or his or her designee, upon request, shall provide any representative of a law enforcement agency, district attorney, city attorney or corporation counsel, county department under s. 46.215 , 46.22 or 46.23 or a court of record or municipal court with such information relating to any such pupil enrolled in the school district for the purpose of enforcing that pupil's school attendance, investigating alleged criminal or delinquent activity by the pupil or responding to a health or safety emergency.

(k) A school board may disclose personally identifiable information from the pupil records of an adult pupil to the parents or guardian of the adult pupil, without the written consent of the adult pupil, if the adult pupil is a dependent of his or her parents or guardian under 26 USC 152 , unless the adult pupil has informed the school, in writing, that the information may not be disclosed.

(L) A school board shall disclose the pupil records of a pupil in compliance with a court order under s. 48.236 (4) (a) , 48.345 (12) (b) , 938.34 (7d) (b) , 938.396 (1) (d) , or 938.78 (2) (b) 2. after making a reasonable effort to notify the pupil's parent or legal guardian.

(m) A parent who has been denied periods of physical placement with a child under s. 767.41 (4) does not have the rights of a parent or guardian under pars. (a) to (j) with respect to that child's pupil records.

(n) For any purpose concerning the juvenile justice system and the system's ability to effectively serve a pupil, prior to adjudication:

1. A school board may disclose pupil records to a city attorney, corporation counsel, agency, as defined in s. 938.78 (1) , intake worker under s. 48.067 or 938.067 , court of record, municipal court, private school, or another school board if disclosure is pursuant to an interagency agreement and the person to whom the records are disclosed certifies in writing that the records will not be disclosed to any other person except as otherwise authorized by law. For the purpose of providing services to a pupil before adjudication, a school board may disclose pupil records to a tribal school if disclosure is pursuant to an agreement between the school board and the governing body of the tribal school and if the school board determines that enforceable protections are provided by a tribal school policy or tribal law that requires the tribal school official to whom the records are disclosed not to disclose the records to any other person except as permitted under this subsection.

2. A school board shall disclose pertinent pupil records to an investigating law enforcement agency or district attorney if the person to whom the records are disclosed certifies in writing that the records concern the juvenile justice system and the system's ability to effectively serve the pupil, relate to an ongoing investigation or pending delinquency petition, and will not be disclosed to any other person except as otherwise authorized by law.

(p) A school board may disclose pupil records to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of any individual.

(q) On request, a school board may disclose pupil records that are pertinent to addressing a pupil's educational needs to a caseworker or other representative of the department of children and families, a county department under s. 46.215 , 46.22 , or 46.23 , or a tribal organization, as defined in 25 USC 450b (L), that is legally responsible for the care and protection of the pupil, if the caseworker or other representative is authorized by that department, county department, or tribal organization to access the pupil's case plan. A department, county department, or tribal organization that receives pupil records under this paragraph may not further disclose those pupil records or any personally identifiable information contained in those pupil records except as follows:

1. To a person who is engaged in addressing the pupil's educational needs, who is authorized by that department, county department, or tribal organization to receive that disclosure, and to whom that disclosure is authorized under this section or under a substantially similar tribal law.

2. Upon request, to any court of this state or of the United States that needs to review those records or that information for the purpose of addressing the educational needs of a pupil who is the subject of a proceeding in that court.

3. In response to an order of a court conducting proceedings under s. 48.135 , 48.21 , 938.135 , 938.18 , 938.183 , or 938.21 , proceedings related to a petition under s. 48.13 , 48.133 , 48.42 , 938.12 , or 938.13 , or dispositional proceedings under subch. VI or VIII of ch. 48 or subch. VI of ch. 938 or in response to a subpoena issued in such a proceeding, to any person who is engaged in addressing the educational needs of the pupil and who is authorized to receive that disclosure under that order or subpoena. Except as provided in 20 USC 1232g (b) (2) (B), a department, county department, or tribal organization that is issued an order or subpoena described in this subdivision shall provide notice of the order or subpoena to the pupil's parent or guardian before complying with the order or subpoena.

(2m)   Confidentiality of pupil physical health records.

(a) Except as provided in par. (b) , any pupil record that relates to a pupil's physical health and that is not a pupil physical health record shall be treated as a patient health care record under ss. 146.81 to 146.84 .

(b) Any pupil record that concerns the results of an HIV test, as defined in s. 252.01 (2m) , shall be treated as provided under s. 252.15 .

(3)   Maintenance of records. Each school board shall adopt rules in writing specifying the content of pupil records and the time during which pupil records shall be maintained. No behavioral records may be maintained for more than one year after the pupil ceases to be enrolled in the school, unless the pupil specifies in writing that his or her behavioral records may be maintained for a longer period. A pupil's progress records shall be maintained for at least 5 years after the pupil ceases to be enrolled in the school. A school board may maintain the records on microfilm, on an optical disc, or in electronic format if authorized under s. 19.21 (4) (c) , or in such other form as the school board deems appropriate. A school board shall maintain law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) (b) 2. or (c) 3. separately from a pupil's other pupil records. Rules adopted under this subsection shall be published by the school board as a class 1 notice under ch. 985 .

(4)   Transfer of records. Within 5 working days, a school district, a private school participating in the program under s. 118.60 or in the program under s. 119.23 , and the governing body of a private school that, pursuant to s. 115.999 (3) , 119.33 (2) (c) 3. , or 119.9002 (3) (c) , is responsible for the operation and general management of a school transferred to an opportunity schools and partnership program under s. 119.33 , subch. IX of ch. 115 , or subch. II of ch. 119 shall transfer to another school, including a private or tribal school, or school district all pupil records relating to a specific pupil if the transferring school district or private school has received written notice from the pupil if he or she is an adult or his or her parent or guardian if the pupil is a minor that the pupil intends to enroll in the other school or school district or written notice from the other school or school district that the pupil has enrolled or from a court that the pupil has been placed in a juvenile correctional facility, as defined in s. 938.02 (10p) , or a secured residential care center for children and youth, as defined in s. 938.02 (15g) . In this subsection, “school" and “school district" include any juvenile correctional facility, secured residential care center for children and youth, adult correctional institution, mental health institute, or center for the developmentally disabled that provides an educational program for its residents instead of or in addition to that which is provided by public, private, and tribal schools.

(5)   Use for suspension or expulsion.

(a) Except as provided in par. (b) , nothing in this section prohibits a school district from using a pupil's records in connection with the suspension or expulsion of the pupil or the use of such records by a multidisciplinary team under ch. 115 .

(b) Law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) (b) 2. or (c) 3. and records of the court assigned to exercise jurisdiction under chs. 48 and 938 or of a municipal court obtained under s. 938.396 (2g) (m) may not be used by a school district as the sole basis for expelling or suspending a pupil or as the sole basis for taking any other disciplinary action against a pupil, but may be used as the sole basis for taking action against a pupil under the school district's athletic code.

(6)   Application to existing records. Any records existing on June 9, 1974 need not be revised for the purpose of deleting information from pupil records to comply with this section.

(7)   Disclosure of law enforcement unit records. A school board shall treat law enforcement unit records of juveniles in the same manner as a law enforcement agency is required to treat law enforcement officers' records of juveniles under s. 938.396 (1) (a) .

1973 c. 254 ; 1977 c. 418 ; 1979 c. 205 ; 1981 c. 20 , 273 ; 1983 a. 189 ; 1985 a. 218 ; 1987 a. 27 , 70 , 206 , 285 , 337 , 355 ; 1987 a. 399 s. 491r ; 1987 a. 403 ss. 123 , 124 , 256 ; 1989 a. 31 , 168 ; 1989 a. 201 s. 36 ; 1989 a. 336 ; 1991 a. 39 , 189 ; 1993 a. 27 , 172 , 334 , 377 , 385 , 399 , 450 , 491 ; 1995 a. 27 ss. 3939 , 3940 , 9126 (19) , 9130 (4) , 9145 (1) ; 1995 a. 77 , 173 , 225 , 352 ; 1997 a. 3 , 27 , 205 , 237 , 239 ; 1999 a. 9 , 149 ; 2003 a. 82 , 292 ; 2005 a. 344 , 434 ; 2005 a. 443 s. 265 ; 2007 a. 20 ss. 2712 , 9121 (6) (a) ; 2009 a. 11 , 28 , 209 , 302 , 309 ; 2011 a. 32 , 105 , 260 ; 2015 a. 55 , 161 , 196 . A public school student's interim grades are pupil records specifically exempted from disclosure under s. 118.125. A failure to specifically state reasons for denying an open records request for records that are specifically exempted from disclosure does not compel disclosure of those records. State ex rel. Blum v. Board of Education, 209 Wis. 2d 377 , 565 N.W.2d 140 (Ct. App. 1997), 96-0758 . A court need not wait until trial to disclose pupil records under sub. (2) (f) and may instead base its decision on the review of deposition testimony. Sub. (2) (f) refers to an action, which is a much broader term than trial. A witness who has been deposed has testified in the action. Anderson v. Northwood School District, 2011 WI App 31 , 332 Wis. 2d 134 , 796 N.W.2d 874 , 09-1881 . A court may not disclose confidential records under sub. (2) (f) merely because they are relevant to a plaintiff's claim. The court's gatekeeper role is to protect the privacy of the pupil whose records are sought, releasing only those records that may concern a specific witness's credibility or competency. Anderson v. Northwood School District, 2011 WI App 31 , 332 Wis. 2d 134 , 796 N.W.2d 874 , 09-1881 . When neither defense counsel nor the school was familiar with the requirements of sub. (2) (f) and neither wholly complied with the statute during discovery when the school faxed the records directly to defense counsel upon defense counsel's request for records rather than provide them to the court for in camera inspection, the trial court was not correct to prohibit the defense from using the records. The trial court should have, upon receipt of the documents, conducted the in camera inspection required by the statute, while requiring the parties to keep the documents confidential. State v. Echols, 2013 WI App 58 , 348 Wis. 2d 81 , 831 N.W.2d 768 , 12-0422 . Pupil information that local education agencies are required to release to the department of public instruction under the reporting provisions of ch. 89, laws of 1973, may be provided, with or without permission, without violation of the state or federal confidentiality statutes. 65 Atty. Gen. 1. “Pupil records" are “public records" under s. 19.32 (2) but are subject to special statutes that limit access and direct maximum and minimum periods of maintenance before destruction. 72 Atty. Gen. 169 . Access to student records in Wisconsin. 1976 WLR 975.