Subpoenas and Other Legal Things

Those of you who have read my columns for some time have a good idea by now that I like to focus on a practical approach to operating in our schools without focusing too much on legalities. This might seem odd for an attorney, but I am not afraid to admit I AM an odd attorney! 

While practicality is typically my focus, I am going to put that focus in check this month and share some legal nuances that come up frequently in Iowa’s schools.

Is It Legal to Record Others Without Their Permission?
Because Iowa is a single consent state, it is legally permissible to record others without their permission, as long as it is clear that they are present for the interaction or conversation. Below are some examples in which it is NOT a violation of Iowa law to record a conversation:

• A parent/guardian calls you on the telephone and records the conversation without sharing that they are recording. 
• An employee is in your office for a conversation about their own employment and records the conversation without sharing that they are doing so. While this is legal, it is arguably not professional.
• A student records a conversation they are having with a teacher in the classroom. 

While these recordings are not a violation of Iowa law as described, they may be prohibited based upon your school policy. Here’s an example for context: Cell phones with cameras and other technology devices capable of storing and/or transmitting and/or receiving images are banned from use for any purpose in locker rooms and restrooms at ALL times. Students may be disciplined for any use of technology devices in school locker rooms or restrooms. At no time are students or visitors authorized to video capture, photograph, or audio record others in the school building, on school property (to include school vehicles), or at school activities (unless recording a public performance, such as a game, honor assembly, concert, contest, etc.), without the consent of a teacher, coach, or school administrator.

In those cases, the student or employee who recorded a conversation or interaction may be disciplined and visitors or parents/guardians could face restrictions on school access. In addition, there may be implications if the individual is recording something and later sharing it in violation of a student's or employee’s confidentiality rights. 

Please note that I shared above how the individual must be present or participating in the conversation. An individual cannot leave a recording device behind, use technology to enhance their ability to hear from a distance, or plant a hidden device to record a conversation. In those situations, they would be invading the privacy of others and it would be a criminal violation.

Subpoenas, Documents, and Depositions
What should you do if you receive a subpoena? First, consider the purpose of the subpoena. The subpoena may commonly relate to providing documents or to attend a deposition. If the subpoena concerns a student’s records or the records of an employee, then you should notify that student’s family or the employee, unless there is an accompanying order prohibiting such communication. This provides the parties involved an opportunity to “quash the subpoena” (make it invalid or void). 

If the subpoena is not quashed, then you should expect to comply with the subpoena and provide the information requested. If you are concerned about whether information is confidential or privileged, please check with your school district’s legal counsel. Questioning whether the information is confidential or privileged may result in a hearing prior to provision or use of the information. Typically, if the information is confidential (not privileged), you will still need to provide the information. However, it's possible that the judge may choose to not use it in a court proceeding. 

If the subpoena relates to longer documents with more extensive information, then you or the district legal counsel might contact the attorney or party providing the subpoena. Ask if they are needing all of the information or are seeking something specific. Sometimes standard language is used in subpoenas when the actual need is much more refined. If it’s determined that you do not need to submit as much documentation, be sure that you receive an email, amended subpoena, or some other documentation showing that they have approved for the school district to provide less information than originally requested. 

Law enforcement does not have access to all student or employee records. If there is an exigent circumstance (e.g., they are immediately seeking information to protect the health or well-being of others), then you should have them share the nature of the exigent circumstance and provide the information without a subpoena. For example, if law enforcement has probable cause that a student has made a threat against another and they need information from the student’s records to prevent that threat from being carried out, then you should provide the information. However, If there is not an exigent circumstance and law enforcement is unable to provide a provision in Iowa or federal law which grants them access to the information requested, then request a subpoena prior to providing them with the information.

In other situations, the subpoena will relate to an employee attending a deposition. If the deposition is at a time that is particularly disruptive for the employee, then it is okay to share about a scheduling conflict or request the deposition to occur at a different date or time. Depositions often occur on the same morning, afternoon, or day when the attorneys are deposing numerous other individuals. It might turn out that it will make no difference to the attorneys involved if your deposition is in the afternoon, rather than the morning, or perhaps later in the afternoon, rather than early in the afternoon. 

Another helpful reminder to employees is to focus on telling the truth and not to get nervous about the experience. If they do not recall a particular fact or event, it is okay for them to share that they do not recall that particular detail.  Likewise, they may share that they would have to check records if those records are not present. 

Employees should not feel obligated to answer a question if they do not believe they have the expertise on the subject.  For instance, it is common during custody disputes for parties to request that employees give their opinion about whether a student is emotionally healthier when they stay with mom or dad. I would encourage employees to share that determining a student’s mental well-being is not within their professional expertise. A student might be happy or sad on a particular day when it has nothing to do with whom they stayed the prior night. Of course, if the student shared that a particular parent/guardian abused them, then this matter would have already been disclosed to the Department of Human Services (DHS) and the employee should share that the student made such a comment. 

Teachers may share about a student’s attendance record or assessments of the student, or other matters relating to student records or interaction. However, they should hesitate to connect dots on why the student is behaving a certain way unless the student has shared particular information with the staff member that would cause them to be able to connect those dots. 

While the topic of subpoenas is complex and can be stressful, I hope this information helps provide some clarity. I also hope you never need to use this information this year! Stay well and Go Irish!!!