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Re: Response to FOIA Request for Review — 2013 PAC 24865
Dear Mr. Boggs:
On June 21, 2013, Champaign Community Unit School District #4 received your June 20, 2013 letter regarding Mr. Charles Schultz’s request for Public Access Counselor (“PAC”) review of the District’s decision to partially deny disclosure of records responsive to Mr. Schultz’s request for records under the Freedom of Information Act (“FOIA”). Your letter indicated that the PAC has determined that further inquiry is warranted. You requested that the District provide unredacted copies of the documents at issue for your conﬁdential review and an explanation of the speciﬁc basis for any exemptions claimed. This correspondence and the enclosures constitute the District’s response.
On Friday, April 26, 2013, the District received from Mr. Schultz a FOIA request for the following records:
“[T]he non personally identiﬁable information data that was sent to [Mr. Michael] Alves and that he sent back to Unit 4 aﬁer March 1“, 2013.”
For your review, enclosed as Exhibit A are the records responsive to this request which were not disclosed in the District’s response to Mr. Schultz’s request. I understand that, pursuant to Section 9.5(c) of the Act, the enclosed records are exclusively for review by the PAC and shall not be disclosed further. The District does not believe any of the information contained in this letter to be conﬁdential other than the aforementioned Exhibit A which is marked as “CONFIDENTIAL” and is enclosed with this correspondence.
The documents requested by Mr. Schultz relate to the District’s Controlled Choice student assignment system for incoming Kindergarten students. Under the Controlled Choice system, students are assigned to a school based upon the preferred choices selected by the parents on the students’ registration forms. These choices are then placed into a proprietary, copyrighted algorithm developed by Mr. Michael Alves and Alves Educational Consultants Group, Ltd., and the results are returned to the District. The information provided — and contained in the documents requested by Mr. Schultz – includes student names, addresses and other identifying characteristics.
The enclosed records are exempt from disclosure for several reasons:
- First, the records are student records exempt from disclosure under Sections 7(l)(a) and 7.5(r) of the FOIA. Section 7(l)(a) of the FOIA exempts information speciﬁcally prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law. Section 7.5(r) of the FOIA exempts information prohibited from being disclosed under the Illinois School Student Records Act (“ISSRA”).
Section 2 of the ISSRA deﬁnes school student records as follows:
“[A]ny writing or other recorded information concerning a student and by which a student may be individually identiﬁed, maintained by a school or at its direction or by an employee of a school, regardless of how or where the information is stored.“ See 105 ILCS 10/2(d).
Section 6 of the ISSRA goes on to speciﬁcally prohibit the disclosure of school student records, unless a speciﬁc exception contained in Section 6 of the ISSRA applies. None of these exceptions apply to Mr. Schultz’s request.
While redactions are appropriate in certain circumstances, redactions of student identifying information are only appropriate where the redactions will shield a student from identiﬁcation. Redactions that shield a student from identiﬁcation in essence cause a released redacted record to lose its status as a school student record because no student can be identiﬁed. lf, however, despite redactions, a student can still be identiﬁed, as is the case with the enclosed records, the record remains a school student record and the ISSRA prohibits its release.
The records at issue here list student names and addresses, ethnicity, special education status, socioeconomic status, retention status and sibling information. Redacting all of the student record information in order to make the records non-objectionable for release would render the records nearly meaningless.
The sanctity of school student records is essential to providing educational services and preserving the privacy of students. Student records reveal a myriad of intimate details about children that are not appropriate for public disclosure. Preservation of these types of student records is critical to maintaining a safe learning environment for current students and protecting current and former students from public scrutiny. The PAC should avoid any decision that would create a gaping loophole that would put all student records at risk of disclosure.
2. In addition, the records enclosed as Exhibit A are exempt from disclosure under Section 7(1)(g) of the FOIA as these records contain trade secrets or commercial information obtained from a person or business where the trade secrets or commercial information are furnished under a claim that they are proprietary, privileged or conﬁdential, and that disclosure of the trade secrets or commercial information would cause competitive harm to the person or business.
The responsive records here contain codes and other designations which are used in the copyrighted algorithm used by Mr. Alves and Alves Educational Consultants Group to run the Controlled Choice student assignment system and which they have claimed as proprietary information. In addition, the proprietary methodology used in the software system is embedded in the codes. Disclosure of this information could lead an individual to deconstruct the copyrighted algorithm developed by Mr. Alves and Alves Educational Consultants Group, causing substantial competitive harm to their business.
“The Illinois legislature intended that the term trade secret would be construed broadly.” Bluestar Energy Services, Inc. v. Illinois Commerce Commission, 871 N.E.2d 880, 886 (1st Dist. 2007). The term trade secret [emphasis in original] in the context of the FOIA has been interpreted to include information that would inﬂict substantial competitive harm. See Bluestar Energy Services, Inc. v. Illinois Commerce Commission, 871 N.E.2d at 886. “In order to show substantial competitive harm, the agency must show by speciﬁc factual or evidentiary material that: (1) the person or entity from which information was obtained actually faces competition; and (2) substantial harm to a competitive position would likely result from disclosure of the information.” Cooper v. Department of the Lottery, 640 N.E.2d 1299, 1303 (1st Dist. 1994).
Regarding the first prong of the Cooper test of substantial competitive harm, Mr. Alves and Alves Educational Consultants Group face direct competition from other entities. In fact, Mr. Schultz himself has taken active steps to introduce other ﬁrms to the District as well as ask others to forward the names of additional ﬁrms to him. In a January 17, 2013 post on his blog “Citizen4: A citizen’s blog about Champaign Unit 4,” regarding a potential request for proposal for the student assignment system, Mr. Schultz notes the following:
“Here are the local ﬁrms I have introduced to [Superintendent] Dr. Wiegand (if you know of others, please let me know):
Chrisp Media” (See Exhibit B)
In the same post, he goes on to note the following:
“[M]y chagrin is focused on the Alves company at large and the service they have provided (or lack thereof) to Unit 4.” (See Exhibit B)
In addition, Mr. Schultz noted the following in a March 11, 2012 post on his blog:
“To the shame of the previous administration, Unit 4 has sure been one heck of a golden egg laying goose for Alves. Time for the egg laying to stop.” (See Exhibit B)
These comments indicate Mr. Schultz’s active engagement in generating competition for Mr. Alves and Alves Educational Consultants Group and seeking an alternate entity to administer the District’s student assignment system – a sure sign that the current consultant faces actual competition.
As to the second prong of the Cooper test, substantial harm to Mr. Alves’ and Alves Educational Consultants Group’s competitive position would likely result from disclosure of the requested documents. As noted above, these documents contain codes and other designations which are used as part of the copyrighted algorithm used to run the Controlled Choice assignment system and which Mr. Alves and Alves Educational Consultants Group have claimed as proprietary information.
Mr. Schultz has made clear on multiple occasions that he is actively attempting to reverse-engineer this copyrighted algorithm. In a March I l, 2012 comment on his blog, Mr. Schultz writes:
“By the way, the ‘technology’ that Alves is using is not too complicated and I would wager that we can easily reverse-engineer it.” (See Exhibit B).
Mr. Schultz goes on to write in a June 11, 2013 comment on his blog:
“Over the course of the past few years of collecting the lottery data, I have pretty much reversed-engineered his formula I cannot say for certainty that I know it because there are outliers in the data which are hard to explain. But I can at least form a semi-accurate picture”(see Exhibit B).
As these comments show, Mr. Schultz has been actively engaged in seeking to reverse-engineer the copyrighted algorithm used by Mr. Alves and Alves Educational Consultants Group to administer the Controlled Choice student assignment system. Concerns regarding competitive harm that may result from Mr. Schultz’s access to this information are particularly on point as Mr. Schultz serves as a Senior Database Coordinator at the University of Illinois and presumably possesses the skills to deconstruct the copyrighted algorithm if the requested records were released.
Based on Mr. Schultz’s past comments regarding the active solicitation of competitors and dissatisfaction with Mr. Alves and Alves Educational Consultants Group, concerns that Mr. Schultz may submit the results of his attempts to reverse engineer the copyrighted algorithm to a competitor or use them for personal gain are real. To be sure, replication of Mr. Alves’ and Alves Educational Consultants Group’s intellectual” property and copyrighted algorithm under these circumstances — particularly by a Senior Database Coordinator — would lead to a substantially weakened competitive position for Mr. Alves and Alves Educational Consultants Group. As such, the prongs of the Cooper substantial competitive harm test are met.
#3. Finally, the records enclosed as Exhibit A are exempt from disclosure under Section 7(l)(i) of the FOIA as these records contain valuable formulae obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss.
As noted in #2 above, the responsive records at issue here contain the codes and I designations which could be deconstructed to derive the copyrighted algorithm used by Mr. Alves and Alves Educational Consultants Group to run the Controlled Choice student assignment system. Disclosure could reasonably be expected to produce private gain or public loss as Mr. Schultz has publicly solicited other entities’ involvement in the student assignment process and stated his intentions to reverse engineer the copyrighted algorithm. The arguments made in #2 above are similarly applicable here.
Mr. Schultz mentions in his correspondence to the PAC that he has “been in receipt of similar data in years prior.” The District maintains that any disclosure of similar information by the District in the past in response to other requests for information from Mr. Schultz was inadvertent and unintentional. Regardless of the information Mr. Schultz may have received in the past, the records requested here are entirely different records from a different year.
It should also be noted that the documents containing the statistical information related to the results of the 2013-2014 Controlled Choice student assignment system (without access to the copyrighted algorithm) were provided to Mr. Schultz in response to his request .
Please let me know if I can be of further assistance in your review. The District looks forward to hearing from you as you conclude your review. The District will take no further action until such time as it may be directed to do so by your office.
School Attorney/Freedom of Information Officer
Better Schools Build Better Communities