Disclosure to Courts

Subpoenas

A subpoena is a document issued by the court at the request of one of the parties involved in a lawsuit or court action. The subpoena is a command of the court requiring the person named to attend in court and give testimony. The person being subpoenaed could be subject to penalties and arrest if he or she does not respond and appear when required.

There are two kinds of subpoenas:

• a subpoena ad testificandum is the ordinary subpoena requiring someone to appear and give verbal testimony; and
• a subpoena duces tecum is a command for a witness to appear and bring to court all documents the witness has in his or her possession that might relate to the case.

The subpoena document will clearly state if the witness is required to bring documents. It might not specify the exact documents to be included.

If a party to the court action believes a person has information that might be relevant to a case then he or she may be subpoenaed to appear at trial as a witness. In the case of school personnel, subpoenas usually involve child custody or young offender matters. The most common documents that are required to be brought to court are student records.

If the subpoena calls for documents it must be determined whether or not the witness who has been subpoenaed has appropriate access to the record for court purposes. School records and files on students, including those prepared by teachers in the course of their employment, are the property of and in the control of the board. It is the board that must determine whether or not the person subpoenaed will have access to the file for the purposes of bringing it to court.

While there is no legal requirement to speak with the lawyer who issued the subpoena it is generally the best way to find out what type of information is being requested, what types of questions might be asked and what the specific schedule for the appearance of the witness is likely to be.

If the person who is being subpoenaed is not the person who has access to the documents being subpoenaed this should be discussed with the lawyer who issued the subpoena. It is usually possible to ask the lawyer to cancel the subpoena and issue another one for the person who is best able to address the records.

Court Orders

In the course of a legal proceeding a court can order that a board release information. Generally speaking such orders will not be made without giving the board a chance to appear before the judge and explain whether or not the board thinks such an order should be made.

A written copy of the order should be requested and the terms of the order should be followed. It would be advisable to consult legal counsel if there is any question. A copy of the order and a list of the information that was disclosed should be kept on the file.

Requests for Reports

In some cases a court will make an order requesting a social worker, psychologist or family worker to prepare a report on a student for the use of the judge. In requesting such a report, the judge might specifically mention that information about education should be included.

In such circumstances, the person making the report will likely call the board and request personal information about the student. These requests do not have the force of a court order. The school is not legally obligated to share information but can do so:

• if consent is obtained from a parent; or
• at its discretion if it is in the best interests of the child which would allow the board to rely upon section 28(2)(n) of LAFOIP to provide disclosure in the public interest and for the benefit of the individual and section 10(c) of LAFOIP Regulations to provide disclosure where it would clearly assist with the provision of service to the individual.