Mr. Lockman's July 2nd response to the PAC (case 24865)

The below text was generated from FreeOCR to convert a PDF image to text, and as such, may contain typographical errors. The original PDF can be found here:

https://thecitizen4blog.files.wordpress.com/2013/07/24865-fwd-let1.pdf


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:

  1. 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):

Spinlight

Pixo

Surface51

Accuraty

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.

Sincerely,

Thomas Lockman

School Attorney/Freedom of Information Officer

Better Schools Build Better Communities

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11 Responses to “Mr. Lockman's July 2nd response to the PAC (case 24865)”

  1. Karen Says:

    Busted! How much were you going to charge to peddle a School Choice program at the Urbana Market?
    Public interest to reveal seems to outweigh your ‘personal gain’ (ridiculous) in this matter. I am sorry that they are maligning your intentions. Are they doing it as a matter of practice (talk-the-talk WRT to ‘community engagement’ and ‘transparency,’ but, don’t walk-the-walk)? Or, do they need to come up with *something* to go up against the sizeable weight of a compelling public interest to know. Alves, himself, states WRT to Controlled Choice:
    ‘Transparency: In order to implement and sustain an effective and fair controlled choice student assignment plan all aspects of the school choice application and assignment process must be transparent and understood by all parents.’ http://parceo.org/collaborative-work/community-controlled-choice/98-2/
    But, here we are with parents having to rely on the spare-time work of a community activist to deconstruct, incompletely, how the Controlled Choice system works here in practice, in order to kind-of sort-of get an idea WRT how their children are assigned a public school seat. Why? Because, apparently, Unit 4 prefers to keep that private, defaulting, among other things, to a ‘commercial interest’ argument for justification, even though the author of the program states, as per above, transparency, as an imperative component of a fair Controlled Choice program. Unit 4 chooses the parameters (http://www.enrolledu.net/services/software-modules/) for ‘tie-breaking’ [see Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)—the District was using Alves’ Controlled Choice program—the same one used here in Unit 4. ] So, it’s not that they don’t know/understand. Rather, it is apparently considered none of the business of the people it’s applied to and/or who fund it. The public has a compelling interest to know if they are funding a program that violates the equal protection clause of the 14th amendment or not. To know the Controlled Choice program is being used in a race-neutral manner, consistent with ‘Department of Education and Department of Justice joint guidance’ publications WRT ‘consideration of race in student admissions and assignment policies in public schools.’ http://www.franczek.com/frontcenter-GuidanceRaceinStudentAdmissionsandAssignmentPolicies.html Failing that, I guess the public has a compelling interest to know whether or not the use of race in the Controlled Choice process meets the ‘narrowly tailored’ compelling interest standard of implementation, or something? (maybe it’s called ‘strict scrutiny.’?) Just read about it here: http://www.law.cornell.edu/supct/html/05-908.ZS.html I am just a layperson parent skimming through this stuff.
    ‘enlisted the use of tiebreakers to
    determine how to fill spots in oversubscribed schools. The first tiebreaker was the
    presence of a sibling at that school, thus allowing siblings to attend the same school. The
    second tiebreaker used race to determine the placement of students (Seattle Public
    Schools, n.d.a; Judge, 1997). The district could choose to not assign a student to a school
    if the school.s composition would not be within fifteen percentage points of the district.s
    demographics of 41% white students and 59% of all other racial groups (Judge, 2007).
    in its opinion issued on June 28, 2007, the Supreme Court of the United
    States declared Seattle.s plan unconstitutional (Parents Involved in Community Schools v.
    Seattle School District, No. 1, 127 S.Ct. 2738 (2007)). The Court stated that the use of
    race violated the Fourteenth Amendment right of students who were not assigned their
    first choice schools, because these students were discriminated against on the basis of
    race. The Court reasoned that the school district could not use this race-conscious
    method to desegregate its high schools. However, it left open the option for the district to
    adopt race-neutral methods to racially desegregate its schools (Parents Involved, 127
    S.Ct. 2738, 2792 (2007) (Kennedy, J., concurring)).’
    ‘the .controlled.
    portion of the program gives districts the power to not assign a student to his/her first
    choice if it would lead to a racial and ethnic composition at the school that does not
    reflect the demographics of the district or attendance area (Willie & Alves, 1996). Thus,
    this method balances the choice of parents and the school district.s goal of improving
    racial diversity in its schools (Willie & Alves, 1996).’
    http://aladinrc.wrlc.org/bitstream/handle/1961/4547/etd_thd7.pdf;jsessionid=22F1422547FF685CA609C3003A65FE85?sequence=1

  2. Karen Says:

    Are there different privacy standards for ‘research’? Unit 4 allows for student participation as research subjects. Similar to what researchers coming into the schools do, all the information you requested can be anonymized so there is no ability to personally identify students. Don’t need an address. Don’t need a name. etc. Assign ‘proximity’ coding, assign subject numbers, etc. ???

  3. Karen Says:

    ‘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.’

    How are they still ‘personally identifiable’ records once the names are redacted and the addresses are coded for proximity? Wouldn’t they no longer qualify as FERPA-protected records?
    http://www.splc.org/wordpress/?p=2970

    • Karen Says:

      The records would be ‘meaningless?’ Is it up to Mr. Lockman to decide that, anyway (even if it were found to be true)? I don’t know. Just asking.

  4. charlesdschultz Says:

    Karen, thanks for all the thoughts and comments – I have incorporated some of your points into a reply I made to the AAG:
    https://thecitizen4blog.files.wordpress.com/2013/07/response-to-pac-24865-july-14.pdf

    I chose not to tackle the angle you took about making sure the school district was faithfully adhering to racial discrimination guidelines – I think you make an extremely valid point, don’t get me wrong. 🙂

  5. charlesdschultz Says:

    For anyone out there that cares, my case is currently #76 out of 178. At the rate of 4.5 days per case (I was #82 on Jan 24th), I should expect my case to be reviewed sometime around 28-Jan-2015. Wow.

  6. charlesdschultz Says:

    March 24: #65 of the 199 open cases

  7. charlesdschultz Says:

    April 24: #63 out of the 219

  8. charlesdschultz Says:

    June 4: #56 out of 222

  9. charlesdschultz Says:

    After two years of no action, I finally closed the PAC case. My take away is that “Open Government”, at least out of the AG’s office, is utterly understaffed and thus broken. However, the good news, and the major impetus for closing the case, is that Unit 4 has talked about putting historical data online. No firm plans at the moment.

    • charlesdschultz Says:

      And one more “lol” for the road. Mr. Boggs typed an office “case informally resolved” letter, which was then printed and then scanned back in at low resolution, and finally the administrative clerk emailed me the scanned in version to my work email address. A part of me just wants to scream “STOP THE INSANITY!” *grin*


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