Alleged Rape Victim Presses Virginia’s Fairfax Schools for Answers on Records Disclosure

Citing the 74’s reporting, the former student asked a judge to compel the district to explain how it accidentally revealed her name.

The attorney for a former Fairfax student who is suing the district filed a motion in federal court seeking to learn more about last month’s accidental disclosure of sensitive student records. (Getty Images)

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A former Fairfax County Public Schools student who accuses the Virginia district of ignoring allegations that she was repeatedly raped, tortured and threatened when she was in middle school is demanding to know how officials accidentally revealed her identity last month. 

In a federal court motion filed Nov. 14 that cited The 74’s exclusive reporting, attorney Andrew Brenner described the disclosure as “at best, careless,” particularly after the former student won a legal battle against the district for her right to remain anonymous. Brenner asked the U.S. District Court for the Eastern District of Virginia to compel Fairfax to explain how her name ended up in documents released as part of a records request that had nothing to do with her case.

A hearing on the motion is set for Dec. 15.

Known as B.R., the woman is suing the district as well as the former students she alleges sexually assaulted her in 2011, with a trial set to begin in March. The motion asks for the names of all district employees involved in producing the materials that identified her as well as the district’s steps “to collect, review, compile and transmit the documents” prior to their release.

The district’s response to the motion could provide insight into how unredacted records on tens of thousands of students were released to a parent and special education advocate. The documents included sensitive, confidential information such as grades, disability status and mental health conditions.

Following The 74’s report, the district apologized and launched an investigation. A firm with expertise in cybersecurity — Woods, Rogers, Vandeventer and Black — is handling the probe, but some parents with children named in the disclosure said so far, no one has contacted them. Superintendent Michelle Reid said in a statement she will share a summary of the investigation once it’s complete.

Callie Oettinger, the parent who received the records, went to her local high school in mid-October to examine what she thought were records pertaining to her own two children. Her son, who received special education services in the district, has since graduated, and her daughter is still in high school. She copied computer files onto thumb drives as a paralegal observed and helped her identify some of the records. 

While most of the documents set aside for her review included her children’s names, they also revealed information on what she estimates were at least 35,000 other students. B.R.’s full name was listed in a document labeled “attorney work product” and marked “privileged and confidential,” as well as in an email to board members about litigation to discuss in a 2020 closed meeting.

The records also identified another former student with a separate Title IX case against the district. In a settlement reached last year, the district agreed to always redact the student’s real name from any copy of the document and only use a pseudonym when referring to the case. Her attorneys did not respond to a request for comment.

One document the Fairfax County Public Schools turned over to parent Callie Oettinger identifies two students who were involved in Title IX lawsuits as Jane Doe, but then includes their names in parentheses. The 74 has redacted their real names.

The day after issuing its apology, the district sent Oettinger a strongly worded email demanding that she “return all files removed, including any and all physical media used for unauthorized extraction of information from FCPS.” The letter referred to the documents as “wrongfully retained information.”

To her attorney, the language suggested Oettinger was at fault. 

“She’s done nothing illegal, and they have no legal right to compel her to do anything,” said Timothy Sandefur, vice president for legal affairs at the Goldwater Institute, a Phoenix-based libertarian think tank. Oettinger posted redacted documents from the recent trove on a website she runs on special education issues. “If they want assurance that she is not going to publish any kind of confidential information about kids, she absolutely will not publish confidential information about children. She has assured everybody of that already.”

Oettinger sent the thumb drives to Sandefur, who has since communicated with attorneys conducting the district’s investigation. But he declined to provide an update on the district’s progress. The attorneys conducting the investigation also didn’t respond to requests for comment.

A need for ‘robust action’

Oettinger didn’t initially alert the district to the disclosure because, she said, it has failed to make improvements after previous privacy violations. In fact, on Oct. 19 — the third and final day that Oettinger reviewed files in person — the Virginia Department of Education responded to one of her earlier complaints, finding the Fairfax district out of compliance with the federal Family Educational Rights and Privacy Act, or FERPA.

The decision only pertained to her son and was not a statement about the district’s overall privacy record.

Patricia Haymes, who directs the state agency’s Office of Dispute Resolution and Administrative Services, noted that officials have had “ongoing concerns” regarding student confidentiality in Fairfax and “believed that there was a need for the school division to take more robust action to ensure sustainable compliance.” But she also said the district assured her in September that it was taking steps “regarding the confidentiality of and access to student records.”

In that Sept. 27 letter, the district said it was training staff on their obligations under FERPA and the Freedom of Information Act, and was planning a “mandatory training” for principals and other administrators in charge of student records and special education. Training was scheduled to begin Oct. 31 and employees have two months to complete it. 

On. Nov. 8, Oettinger appealed the state’s decision, citing The 74’s reporting on the accidental records release. Both the district and the state have “failed to ensure compliance — and now here we are,” she wrote. “You have enough for [the district] to be found at fault for systemic noncompliance.” 

The district disputes that it has violated the law. In a Nov. 21 response to Oettinger’s appeal, it described the disclosure as a “single instance of what appears to be human error” and said that Oettinger’s in-person review of the documents, which FERPA allows, was “outside the typical electronic document production that FCPS employs.“

Oettinger said she has faith in Reid, who became superintendent last year, to push for tighter security.  The two have exchanged emails and met in person multiple times. Oettinger said she’s “choosing to believe Reid’s trying to change the district’s culture and that she knows me enough to know I’d never do anything nefarious.”

Some special education experts in the state are baffled by the district’s mistake. 

“It’s just the norm that when you do a document production, you are careful about what you shouldn’t be disclosing — whether it’s other students’ names or legal advice,” said Jim Wheaton, a William and Mary Law School professor who runs a legal clinic for future attorneys that plan to work on special education issues. “It just blows my mind that they would be so reckless.”

But he said that there’s not much parents can do about such violations. They can file complaints, but there’s no right to sue under FERPA.

“In religious terms,” he said, “it’s, ‘Go forth and sin no more.’”

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