Appeal and Error - Record on Appeal - Legal Reasoning in Judgment or Order - Effect. That portion of an order disposing of litigation which expresses the trial judge's understanding of the applicable law will be considered as a written memorandum opinion.
 Criminal Law - Statutes - Validity - Challenge in the Abstract. A statute should be tested in the light of some kind of behavior, actual or hypothetical, unless it is so palpably in derogation of specifically enumerated and declared constitutional rights that reasonable men could not differ concerning it.
 Indictment and Information - Sufficiency - Waiver. When a criminal complaint is not directly challenged, the accused is deemed to have understood it, comprehended the charges set forth, and found it legally sufficient.
 Statutes - Construction - Meaning of Words - Ordinary Definition. Words of a statute not particularly defined are to be given their ordinary, everyday meaning.
 Statues - Construction - Meaning of Words - Common Law Meaning. When the legislature uses a term in a statute well known to the common law, it is presumed that it was intended to be given a meaning as understood at common law.
 Statutes - Construction - Constitutional Interpretation. A statute is presumed constitutional, and if susceptible of more than one interpretation, the courts will interpret it to be constitutional if possible. A statute should not be declared unconstitutional unless it appears unconstitutional beyond reasonable doubt.
 Criminal Law - Statutes - Construction - Favorable to Accused - Effect. The rule that doubts in a criminal statute are to be construed in favor of the accused does not require the courts to seek an expanded interpretation rendering the act unconstitutional, but rather that the statute will be applied only to conduct clearly intended to fall within its terms.
 Criminal Law - Statutes - Certainty - Test. When determining whether a penal statute is void for uncertainty or vagueness, its language should not be considered as an abstract exercise, but must be read in a context of well-defined usage, and, if men of ordinary intelligence can understand it, it should be upheld.
 Criminal Law - Unlawful Assembly - Certainty. RCW 9.27.060, the unlawful assembly statute, is not void for vagueness or uncertainty.
«*» Reported in 479 P.2d 931.
Assembly. RCW 9.27.060, which prohibits the assembly of three or more persons who attempt a breach of the peace or other unlawful act, does not abridge the right to freedom of speech and assembly.
 Criminal Law - Unlawful Assembly - Elements - Intent - Necessity. The crime of unlawful assembly (RCW 9.27.060) was a crime at common law; it is a crime malum in se and requires a showing of intent for conviction.
 Criminal Law - Unlawful Assembly - Bystanders. The phrase in RCW 9.27.060(3), which under certain circumstances deems guilty of unlawful assembly "every person participating therein by his presence, aid or instigation," does not include innocent bystanders or others who do not have intent, purpose, or design. The phrase means to engage actively in the prohibited conduct, to go there or remain there, or willfully fail to leave after forming an intent with others to do the things prohibited in the statute.
 Criminal Law - Unlawful Assembly - Elements - Intent - Evidence. Evidence that one remains in the face of a lawful order to leave is admissible to show intent for purposes of unlawful assembly, where the request is issued by lawfully authorized persons in the reasonable exercise of police powers and in a reasonable effort to protect lives and property, and to maintain the public peace.
ROSELLINI and STAFFORD, JJ., concur by separate opinions.
Appeal from a judgment of the Superior Court for King County, No. 48846, Solie M. Ringold, J., entered April 1, 1969. Reversed and remanded.
Prosecution for unlawful assembly. The state appeals from a judgment of dismissal.
Charles O. Carroll, Neal J. Shulman and David W. Hotchkin, for appellant.
Ronald J. Meltzer, Edmund J. Wood, and Michael H. Rosen, for respondents.
 See Ann. 71 A.L.R.2d 875; 54 Am. Jur. 2d, Mobs and Riots § 8.
of free government is to insure domestic tranquility. Common sense dictates that, without the assurance of domestic tranquility, the other great aims of free government will remain unachieved, and the individual rights upon which they depend will vanish. There is nothing unconstitutional about common sense.
Three defendants here appealed to the superior court from their district justice convictions of violating the Unlawful assembly statute. RCW 9.27.060(2) and (3). Holding the statute unconstitutional and void under what has been sometimes described as the constitutional doctrines of vagueness and overbreadth, the court ordered the complaint dismissed. The state now appeals both the order of dismissal and the declaration of unconstitutionality.
As we understand the record, defendants did not directly challenge the language or meaning of the complaint upon which they had been and were about to be tried; nor claim that they could not understand what it meant; nor that, because of the complaint's vagueness and uncertainty, they were unable to prepare a defense. Instead, defendants directed their attack toward the whole statute under which in justice court they had been tried and convicted. Taking a panoramic view of the statute and without referring to the facts of the case, the superior court held it void per se.
The statement of facts in this case consists entirely of colloquy, argument and commentary upon the law, with only peripheral references as to what facts the prosecution claimed had been earlier shown or would be shown at trial. We have had to piece the record together, consequently, from the transcript, briefs and argument to find out what happened and of what the defendants' were convicted in the first place.
tried to enunciate the ideas that you - THE COURT: I think you improved on it. I think it is fine, but I wonder whether that is appropriately in an order. MR. MELTZER: I felt this way, Your Honor: If this matter is appealed, which I assume it will be, that the Supreme Court should have before it at least some idea of what at least was in your mind as I have had it transcribed when you made your ruling. If the Court feels that this could be done equally with your oral opinion I am not going to object to your striking it, but this was my purpose in doing so. and THE COURT: Well, it is very unusual to enter an order of this nature, Mr. Meltzer. It sort of offends my sense of orderliness to have it presented in that fashion. MR. MELTZER: If Your Honor wishes, I feel if I strike what you described as my editorializing, I imagine it would probably read the way I - THE COURT: If I recall - I don't have my oral decision before me now, but you do incorporate my notes, so I have no objection at all to the content except as to its propriety in being in an order of this nature. The order of dismissal does, however, provide a basis for appeal in this case for the state excepted to its entry and all of the recitals set forth in it, and now appeals both the dismissal of the cause and the ruling of unconstitutionality. Assignments of error run to both the effect of the order and the legal conclusions in it. We agree with the court's evaluation that the order amounts to an editorializing, but will treat the order as a written memorandum of Opinion showing in summary some of the court's views in declaring the statute unconstitutional and void. See Appendix. We think it a better practice, however, that judicial opinions be identified as such in the record and be included in the statement of facts or, if fully verified, in the transcript.
Only a few peripheral references to the facts of the case appear in the statement of facts and neither party supplied the record with even a brief summary of the evidence upon which the justice court conviction rested, or of what the state would attempt to prove in superior court. The court knew that the justice court complaint arose out of events occurring in the principal's office at Franklin High School.
«1» "They, the said AARON DIXON, TROLLIS FLAVORS, LARRY GOSSETT, RICHARD GOSSETT, and CARL MILLER, and each of them, in the County of King, State of Washington, on or about the 29th day of March, 1968, willfully and unlawfully did assemble with two or more persons with the intent to carry out a purpose in such manner as to disturb the public peace, and while being assembled with two or more persons did attempt or threaten an act tending toward a breach of the peace and injury to persons or property, and they and each of them did participate in the act or acts herein charged by their presence, aid, or instigation, contrary to the provisions of RCW 9.27.060 (2) and (3), and against the peace and dignity of the State of Washington."
School in the city of Seattle on March 29, 1968, wherein the accused allegedly organized and led a group, variously estimated at fifty to seventy-five persons into the office of the school principal in a loud and clamorous confrontation, where the principal was physically manhandled and threatened with being held a "hostage" until certain demands were met. The principal's small office was filled to overflowing by the demonstrators. After the principal effected his withdrawal, the accused and their group continued to hold the office for several hours during which they succeeded in effectively jamming the school's communication system with the outside world.
When the group at length vacated the office, it was found that the principal's papers and records had been scattered around, some missing, and some hopelessly mutilated, the woodwork had been carved upon, holes had been burned in the rug, eggs had been smeared on walls and furniture, a plumbing fixture in the principal's washroom had been ripped from the wall, and water had been permitted to overflow the office floor. As a result of the incident, which occurred on a regular school day, classes had to be dismissed and the school closed for the day. Many of the group involved, including the respondents herein, had no connection with Franklin High School, either as students, parents or employees.
Respondents made no counterstatement of the case nor in any way refute, deny or question that the charges in the complaint were based on a series of events occurring at Franklin High School. They do question the relevance of the foregoing statement in this appeal.
constitutionality of the statute for defendants attack its application here as well as its substance. See Comstock v. United States, 419 F.2d 1128 (9th Cir. 1969).
(3) Being assembled, shall attempt or threaten any act tending toward a breach of the peace, or an injury to persons or property, or any unlawful act - such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, shall be guilty of a gross misdemeanor. RCW 9.27.060(2) and (3).
postulate some events, imminent or threatened, before the courts will rule on the statute's validity, meaning or application. See Appendix. In Seattle v. Drew, 70 Wn.2d 405, 423 P.2d 522 (1967), where a loitering ordinance substituted the subjective judgments and personal prejudices of a police officer for the law itself by making it a criminal offense for the accused to "fail to give a satisfactory account of himself upon the demand of any police officer," this court found it necessary to elucidate the rationale with a margined narration of the operative facts. Seattle v. Drew, supra, at 407, n. 3.
 Defendants here, as noted, challenged the statutebut not the complaint - for vagueness, indefiniteness and uncertainty. Not having moved against the complaint per se as they had a right to do, they must be deemed to have found it legally sufficient. A complaint, information or indictment, though sufficient to charge a crime, may be subject to attack because it is too indefinite or uncertain to enable the accused to prepare his defense. It is also subject to a demand for a bill of particulars. See State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965). Ordinarily, if the offense is one created by statute, the offense may - as was done here - be charged in the language of the statute. State v. Howard, 157 Wash. 183, 288 P. 236 (1930); State v. Tiffany, 44 Wash. 602, 87P. 932 (1906). If the statutory language is too indefinite or uncertain to enable the accused to prepare a defense to it and plead a judgment rendered under it as a bar to a subsequent prosecution for the same offense, the complaint, indictment or information - although not necessarily void for vagueness - is subject to motions to clarify, make more definite and certain, or for a bill of particulars. it State v. Thomas, 73 Wn.2d 729, 440 P.2d 488 (1968); State v. MOSER, 41 Wn.2d 29, 246 P.2d 1101 (1952).
(1896); State v. Brummett, 98 Wash. 182, 167 P. 120 (1917); State v. St. Clair, 21 Wn.2d 407, 151 P.2d 181 (1944). Where, under a penal statute, a single offense can be committed in different ways or by different means and the several ways or means charged in a single count are not repugnant to each other, a conviction may rest on proof that the crime was committed by any one of the means charged. State v. Parmenter, 74 Wn.2d 343, 444 P.2d 680 (1968). Defendants raised none of the points embodied in these principles. They must, therefore, be held to have understood the complaint and comprehended the nature of the charges set forth in it. Phrased as it was in the language of the statute, the complaint must, therefore, be deemed legally sufficient to charge a crime.
As we understand the record here, the learned trial judge declared the unlawful assembly statute, RCW 9.27.060(2) and (3), void for three reasons: (1) unconstitutional vagueness and uncertainty generally; (2) abridgment of freedom of speech; and (3) uncertainty in the clause which says "participating therein by his presence." See Appendix. Recognizing that the three propositions are interrelated and that the discussion of the one may in part apply to the others, we will take up first the first stated idea.
and overbreadth" - a judicial expression in itself about as vague and overbroad as one can conjure up on short notice. The terms "disturbance of the peace" and "breach of the peace," and their plurals and various tenses, we find have been separately employed at least 23 times in statutes in this state.«3» Presumably through long usage and in the belief that the words of the statutes constitute their own best definition, the legislature has not thought it necessary to define them.
[4, 5] Words of a statute not particularly defined are to be given their ordinary, everyday meaning. If the legislature uses a term well known to the common law, it is presumed that the legislature intended it to mean what it was understood to mean at common law. Irwin v. Rogers, 91 Wash. 284,157 P. 690, L.R.A. 1916E 1130(1916); Fransen v. State Bd. of Natural Resources, 66 Wn.2d 672, 404 P.2d 432 (1965); RCW 4.04.010; RCW 9.01.150.
 Acts of the legislature are presumed to be constitutional. If a statute is susceptible of two or more interpretations, some of which may render it unconstitutional, the court will, if possible, give it an interpretation which upholds its constitutionality. George v. Day, 69 Wn.2d 836, 420 P.2d 677 (1966); Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964); State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939). A statute or ordinance should not be declared unconstitutional unless it appears beyond reasonable doubt to be so. Hoppe v. State, 78 Wn.2d 164, 469 P.2d 909 (1970); State ex rel. Knabb v. Frater, supra; Port of Tacoma v. Parosa, 52 Wn.2d 181, 324 P.2d 438 (1958); State v. Primeau, 70 Wn.2d 109, 422 P.2d 302 (1966).
RCW 3.28.010; 7.20.010; 7.48.230; 7.48.240; 9.05.150; 9.11.050; 9.23.010; 9.27.060 (here before the court); 9.76.030; 10.13.150; 29.81.090; 35.23.440; 35.24.160; 35.27.240; 36.28.010; 38.08.050; 38.24.010; 38.24.030; 38.38.776; 38.44.010; 47.32.130; 62A.9-503; and 71.08.010.
(Seattle v. Green, 51 Wn.2d 871, 322 P.2d 842 (1958)), this does not mean that the courts will seek an expanded interpretation rendering the act unconstitutional, but rather that the statute will be applied only to conduct clearly intended to fall within its terms. Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959); State v. Moser, 41 Wn.2d 29, 246 P.2d 1101 (1952).
have little difficulty in understanding the statute. It is, we think, a sufficiently clear and precise legislative statement to be understood by a person of common understanding. Taken as a whole, the statute (RCW 9.27.060; Laws of 1909, ch. 249, § 298, p. 981) is not void for vagueness or uncertainty, and meets generally the constitutional standards of certainty.
The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.
rights of peaceable assembly and freedom of speech are not abridged by laws which prohibit gatherings of people intent on criminal activity, or which thwart the conduct of groups who, having lawfully assembled, formulate a purpose to breach the peace, or injure persons or property or do any other unlawful acts. The constitutional provision that Congress shall make no law abridging "the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (U.S. Const. amend. 1), though applicable to the states, does not deprive the people of their right to legislate against mob action, riots and violent trespass upon their institutions. Members of a mob bent on a lynching if forcibly dispersed by peace officers are in no position to complain that they have been deprived of the rights of peaceable assembly and freedom of speech.
The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only,, 'reasonable' but also particularly appropriate . . . ."
reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose. (Footnote omitted.) Adderley v. Florida, 385 U.S. 39, 47, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966). See, also, Cox v. Louisiana, 379 U.S. 536, at 554, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965), for the statement that constitutional guarantees of freedom imply the existence "of an organIzed society maintaining public order, without which liberty itself would be lost in the excesses of anarchy." Freedom of speech has been and will be categorically upheld by the judiciary. Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931). But freedom of speech does not carry with it a correlative right to exercise it in every circumstance, everywhere, every moment of every day. The colonial revolutionists did not intend to loose the wild and disintegrating forces of lawlessness and anarchy upon a Union they had paid such a price to create.
When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. (Italics ours.) Cantwell v. Connecticut, 310 U.S. 296, 308, 84 L. Ed. 1213, 60 S. Ct. 900,128 A.L.R. 1352 (1940).
unlawful assembly could be held guilty simply by being there.
Such are the limitations of the English language that there is hardly a criminal statute in the books which cannot in one degree or another be analyzed into an absurdity. Apply enough sophistry to a statute, collate its convolutional genesis, envelope it with sufficient rhetoric, stretch the internal logic of the law far enough, and most any part of the criminal code can-superficially, at least - be made to appear indefinite, uncertain, overbroad, or downright unintelligible. By bringing sufficient palaver to bear, the point is reached where a highly intelligent and educated man will be unable to understand what every man of common understanding will be obliged to comprehend.
(E.D. Pa. 1968), aff'd per curiam, 392 U.S. 646, 20 L. Ed. 2d 1358, 88 S. Ct. 2307 (1968). This does not mean, however, that evidence of remaining in the face of requests or lawful orders would not be admissible to show the unlawful intent or design contemplated by the statute where lawfully constituted peace officers or others authorized by law in the reasonable exercise of lawful police powers and in a reasonable effort to protect lives, and property, and to maintain the public peace, request or direct the assembled persons to leave the area where they have assembled.
The term, participates by his presence, thus does not include innocent bystanders, mere passersby, casual pedestrians or other persons who, without intent, purpose or design to do other than be where they are, find themselves among a crowd or group of people. To participate by one's presence at an unlawful assembly means to engage actively in the prohibited conduct, to go there or remain there, or willfully to fail to leave there after forming an intent with others to do the things prohibited by the enactment.
"Participate" is an active verb. It is to be read in the context of the entire unlawful assembly statute and in the light of the delineation of that offense in preceding paragraphs of the statute. RCW 9.27.060. Participating by one's presence in an unlawful assembly is the very antithesis of an innocent and unwitting presence, and requires for conviction evidence or inference from evidence to show an intent or design to engage in or further the unlawful acts while being present at the assembly, i.e., carry out any purpose in such a manner as to disturb the peace, or attempt or threaten to do so, or attempt or threaten injury to any person or property, or attempt or threaten any other unlawful acts. Cf. Comstock v. United States, 419 F.2d 1128 (9th Cir. 1969), for a different view under the Federal Assimilative Crimes Act, 35 Stat. 1088, 18 U.S.C. § 13, pending interpretation of this statute by the courts of this state.
understand what conduct is prohibited or what acts are required of him. The language need not be lawyerlike, technical or involve terms of legal art. That the courts might draft the enactment with greater clarity and precision than the legislature has done, affords no basis for throwing out the statute - and the decisional law in criminal cases affords little basis for any assumption that judgewritten law is more precise, clear or certain than statutory law.
Reversed with directions to try the defendants on the complaint.
HAMILTON, C. J., FINLEY, HUNTER, NElLL, and McGOVERN, JJ., and DONWORTH, J. Pro Tem., concur.
"When first amendment rights are involved, the Court may consider the question as to whether or not the statute in question is so broad as to encompass within its scope constitutionally protected conduct, and would thus infringe upon rights guaranteed by the first amendment to the constitution. The court need not wait until there is an authoritative construction of the particular statute, or that based upon the facts in the particular case the application of the statute to these facts would be unconstitutional.
statute is violative of rights guaranteed by the first amendment to the Constitution.
"In the instant case, under Subsection (2) of the statute one who has assembled "with the intent to carry out any purpose which n'ay disturb the peace" could be found guilty. Under Subsection (3) of the statute, merely being assembled and having the assembly subsequently becoming unlawful permits the conviction of any person lawfully present even though that person may not be engaging in the subsequent unlawful act.
"Subsection (3) in addition to having the vices inherent in Subsection (2) permits conviction of an individual present at a lawful assembly when three or more in the assembly act in an unlawful manner even though that individual does not participate in these acts, raising the spectre of guilt by association.
"Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. RCW 9.27.060 (2) and (3) has a chilling effect upon the exercise of first amendment rights and particularly upon the exercise of the right to freely assemble.
"It is hereby ORDERED, ADJUDGED AND DECREED that plaintiff's complaint be dismissed with prejudice.
"It is further ORDERED, ADJUDGED AND DECREED that the cash bail of defendants be and it hereby is exonerated."
STAFFORD, J. (concurring) - I concur in the result and general rationale.
ROSELLINI, J. (concurring in the result) - As I understand the majority opinion, it holds that this statute does not apply to an assembly for the purpose of exercising the rights of free speech and/or petition guaranteed by the first amendment to the United States Constitution and article 1, sections 4 and 5 of the constitution of this state.
present at such an assembly. Or stated still another way, as I understand the majority opinion, it holds that the prosecution must prove, as a part of its case, that any person charged was an active participant in a breach of the peace before a conviction can be had under this statute. As thus interpreted, I agree that the statute does not interfere with the right of peaceable assembly or deny due process of law and, therefore, I concur in the result.
NEILL and McGOVERN, JJ., concur with ROSELLINI, J.


text:
Steward v. Kuettel - 2014 Ark. 499 Arkansas Supreme Court. December 4, 2014. Benton County Circuit Court, Hon. Xollie Duncan. REVERSED.
Anderson v. CitiMortgage, Inc. - 2014 Ark.App. 683 Court of Appeals. December 3, 2014. Pulaski County Circuit Court, Third Division, Hon. Jay Moody. AFFIRMED.
Autry v. Beckham - 2014 Ark.App. 692 Court of Appeals. December 3, 2014. Lonoke County Circuit Court, Hon. Will Feland. REVERSED.
Andrew Cody v. State of Arkansas - 2014 Ark.App. 686 Court of Appeals. December 3, 2014. Pope County Circuit Court, Hon. William M. Pearson. AFFIRMED.
Patricia Hajek-McClure v. State of Arkansas - 2014 Ark.App. 690 Court of Appeals. December 3, 2014. Crawford County Circuit Court, Hon. Gary Cottrell. AFFIRMED.
United States v. Allon Anderson - No. 14-1165 8th Circuit Court of Appeals. November 17, 2014. Western District of Arkansas, Hon P.K. Holmes. AFFIRMED.

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The Public Records Law governs access to athletic, trustee and student records generally.
Access to certain educational records is controlled by federal law. A.R.S. § 15-141.
Some assessment and investigation records are specifically exempt from the Public Records Law.
A.R.S. §§ 15-350(A) and (B) provide that the Board of Education’s records from an immoral or unprofessional conduct investigation are “confidential and are not a public record.” However, the board can provide these records to the school that currently employs that individual.
A.R.S. § 15-537(I) provides that “evaluation report and performance classification of a certificated teacher retained by the governing board and the department of education are confidential, do not constitute a public record . . . . ” However, these records can be revealed to the certificated teacher or in an official proceeding regarding that individual’s employment.
A.R.S. §§ 15-551(A), (C) provide that the identity of any student who participates in a hearing regarding the discipline or dismissal of a teacher will be kept confidential.
In Arizona Board of Regents v. Phoenix Newspapers Inc., the court drew a distinction between a “prospect,” whose name was not subject to disclosure, and a “candidate,” whose was. The court stated that “[t]he public’s interest in ensuring the state’s ability to secure the most qualified candidates for the university president’s position is more compelling than its interest in, or need to know, the names of all of the prospects,” but held that releasing the names of the 17 final candidates served “[t]he public’s legitimate interest” and thus outweighed the candidates’ countervailing interests of privacy and confidentiality. 167 Ariz. 254, 258, 806 P.2d 348, 352 (1991).
“The right to inspect and review educational records and the release of or access to these records, other information or instructional materials is governed by federal law in the family educational and privacy rights act of 1974 . . . and federal regulations issued pursuant to such act.” A.R.S. § 15-141(A). The Family Educational Rights and Privacy Act of 1974 (“FERPA”) and associated regulations only permit disclosure of educational records with written parental consent, to comply with a judicial order, or pursuant to a lawfully issued subpoena. See Catrone v. Miles, 215 Ariz. 446, 452-53, 160 P.3d 1204, 1210-11 (Ct. App. 2007) (citing 20 U.S.C. § 1232g (2000 & Supp. 2006) and 34 C.F.R. § 99.31(a)(9)(i) (July 1, 2006 and Oct. 13, 2006)).
See Conn. Gen. Stat. § 1-210(b)(11) as discussed above in Records Outline at II.A.2.k; see also Polman v. UConn School of Law, Do. #FIC 83-68 (Oct. 26, 1983) (respondent is a public agency).
Public school and university records are subject to the Act’s disclosure requirements. The Georgia First Amendment Foundation publishes in collaboration with the Georgia Department of Law, the Georgia Parent Teacher Association and the Georgia Press Association a citizen’s guide to accessing school records, available online at http://www.gfaf.org/the-green-book/.
The Idaho Public Records Act exempts certain records related to academic research at public institutions of higher education. See Idaho Code § 74-107(20)-(23).
While the Illinois School Student Records Act, 105 ILCS 10/1 et seq., (which applies to Illinois’ primary and secondary schools) protects certain student records wherein students are individually identifiable, masked or de-identified student records and test scores are open. Bowie v. Evanston Community Consol. School Dist. No. 65, 128 Ill.2d 373, 538 N.E.2d 557, 131 Ill.Dec. 182 (1989).
Generally, while records pertaining to individually identifiable students are exempt, records pertaining to a school’s or university’s administration are not.
Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student's education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 44.
The federal Family Educational Rights and Privacy Act (FERPA) may protect records containing personally identifiable information from disclosure. Educational records may be withheld in their entirety as “personally identifiable information” where the requester would otherwise know the identity of the referenced student(s), even with redactions. See Press-Citizen Co., Inc. v. Univ. of Iowa, 817 N.W.2d 480, 492 (Iowa 2012).
“A subpoena is a sufficient court order under section 22.7(1) to allow a party to obtain possession of records to allow a court an opportunity to assess their relevancy and materiality.” Poole v. Hawkeye Area Cmty. Action Program, Inc., 666 N.W.2d 560, 565 (Iowa 2003).
In Krakauer v. Commissioner of Higher Education, 384 Mont. 527, 381 P.3d 524 (2016), the Montana Supreme Court muddled the rules governing access to student records. In an attempt to reconcile the Family Educational Rights and Privacy Act's (FERPA) prohibition against unilateral release of personally identifiable information with the Montana Constitutional right to know, the Court held that a student has a “heightened” privacy right for the purposes of the balancing test under Article II, Section 9. Upon remand, the district court, ruled that even under a “heightened” privacy standard the student discipline records of a star quarterback must be disclosed for failure to meet the right-to-know’s “clearly exceed the merits of public disclosure” standard.
Student, faculty, and staff lists with personal identifying information obtained from a public school may not be used for marketing goods and services to students, faculty, staff, or their families. NMSA 1978 § 22-21-2. Letters or memorandums that are matters of opinion contained in students’ cumulative files are also not available to the public. NMSA 1978 § 14-2-1(A). Information that is confidential under federal law may also exempt from disclosure under state law. See, e.g., NMSA 1978 § 14-2-1(A)(8).
In 2010, a coalition of nine media organizations sued the University of North Carolina for access to records related to an NCAA investigation of improprieties in the football program. The case explored interpretation of the interplay between the Public records law and the state and federal laws requiring confidentiality of education records. UNC has withheld certain records (including phone records and parking tickets) on the basis of FERPA and the North Carolina statute relating to confidentiality of student records. The case resolved with the trial judge determining that FERPA was not the all-encompassing “invisibility cloak” the University contended.
Generally restricted under the federal Family Educational Rights and Privacy Act, which is a specific exception to the open records law.
Please see the discussion of education records and information exemptions. Records of a school law enforcement unit regarding a student at a school are also confidential. N.D.C.C. § 15.1-19-14.
Generally open. SDCL §§13-49-21 and 13-8-43.
"Scholastic records" means those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. Scholastic records include directory information, which includes the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height as a member of athletic teams, dates of attendance, degrees and awards received, and most recent previous educational agency or institution attended Va. Code Ann. § 2.2-3705.4.A.1. Scholastic records containing identifiable information are excluded under the Act, but the subjects of the records or the subject’s guardian will have access to the records. Va. Code Ann. § 2.2-3705.4.
"data relating to a person's Social Security number, or other identification number issued by a state or federal agency, except for the state-assigned student identifier as defined in this section, religious affiliation, whether the person or a member of their household owns or possesses a firearm, whether the person or their family are or were recipients of financial assistance from a state or federal agency, medical, psychological or behavioral diagnoses, criminal history, criminal history of parents, siblings or any members of the person's household, vehicle registration number, driver's license number, biometric information, handwriting sample, credit card numbers, consumer credit history, credit score, or genetic information."
However, individual students' and personnel records generally would be subject to the balancing test applicable to personal information. Information concerning the institution, including trustee records, should be available for public inspection. A specific statute requires colleges and universities in the state to provide information to the public regarding alleged crimes occurring on campus and reported to the school's security or other officials. W. Va. Code § 18B-4-5a.
It should be noted, however, that many student records of state colleges and universities are exempt from disclosure pursuant to federal law. The Family Educational Rights and Privacy Act, (“FERPA”) (20 U.S.C. § 1232g; 34 CFR Part 99) the Individuals with Disabilities Education Act (IDEA), the Protection of Pupil Rights Amendment (PPRA), and the National School Lunch Act (NSLA), are federal laws that provide various levels of confidentiality for student education records. FERPA applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Information relating to FERPA is available at the United States Department of Education website: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
Corporations created under the Higher Education Act are exempt from the provisions of the Open Government Proceedings Act and the West Virginia Freedom of Information Act. W. Va. Code § 18B-1F-4(a)(4).
All information relating to a reported incident of harassment, intimidation or bullying in schools is confidential, and exempt from disclosure under the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 18-2C-3(b)(10).
These records are generally open unless they are expressly made confidential by state or federal law.


South Carolina is the most recent state to hear a case on the copyright status of state government documents. In Seago v. Horry Cnty., 378 S.C. 414, 423, 663 S.E.2d 38, 43 (2008), a South Carolina court decided to follow the lead of New York, and held that the County in the case could hold a copyright in their mapping data, and that they could require licensing for subsequent commercial use of the maps if requested under the state Freedom of Information Act.
The South Carolina Freedom of Information Act was first adopted in 1974 and may be found at S.C. Code Ann. § 30-4-10.
A records request for motor vehicle records requires the requestor to state the purpose of the request. S.C. Code Ann. § 56-3-510. Additionally, several statutes prohibit the use of records for commercial solicitation. See S.C. Code Ann. § 30-4-40(a)(2) (names and telephone numbers of handicapped persons); S.C. Code Ann. § 30-4-50(B); S.C. Code Ann. § 30-2-50. Furthermore, the court in Seago v. Horry County determined that licensing restrictions were appropriate for the subsequent use of county records.
The South Carolina State Library says that, "Records, documents and information made available by the agencies of South Carolina state government or its subdivisions are the property of the people of the state of South Carolina. Therefore, the South Carolina State Library considers these items to be in the public domain according to US copyright law (see Title 17, U.S.C.)."
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in South Carolina, available at http://www.rcfp.org/rcfp/orders/docs/ogg/SC.pdf.
South Carolina State Library, available at http://www.statelibrary.sc.gov/.
South Carolina Department of Archives and History, available at http://scdah.sc.gov/Pages/default.aspx.
South Carolina Press Association, Freedom of Information Act, available at http://www.scpress.org/foia.html.
Seago v. Horry Cnty., 378 S.C. 414, 423, 663 S.E.2d 38, 43 (2008), available at https://scholar.google.com/scholar_case?case=12877392669401300528.
S.C. Code Ann. § 30-4-10, available at http://www.scstatehouse.gov/code/t30c004.PHP.
S.C. Code Ann. § 56-3-510, available at http://www.scstatehouse.gov/code/t56c003.php.
S.C. Code Ann. § 30-4-40, available at http://www.scstatehouse.gov/code/t30c004.PHP.
S.C. Code Ann. § 30-4-50, available at http://www.scstatehouse.gov/code/t30c004.PHP.
S.C. Code Ann. § 30-2-50, available at http://www.scstatehouse.gov/code/t30c002.php.
S.C. Code Ann. § 59-150-60, available at http://www.scstatehouse.gov/code/t59c150.php.
S.C. Code Ann. § 13-1-350, available at http://www.scstatehouse.gov/code/t13c001.php.
South Carolina State Library, Statement of Rights, available at http://www.statelibrary.sc.gov/statement-of-rights.


Nancy Miller, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Robert A. Handelsman, Christoper J. Cullen, Winston & Strawn, Robert A. Handelsman, Chicago, IL, Defendants-Appellants.
Before BAUER, COFFEY, and MANION, Circuit Judges.
The appellants, Vernon and Maria Magana Bonner, have filed a motion asking this court to provide direction to the district court on a matter of first impression in this circuit. We previously directed a limited remand pursuant to the terms set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for the district court to state whether it would have imposed the same sentences had it understood in this case that the guidelines were advisory. On remand, the original sentencing judge recused himself, and the case was reassigned to another district court judge. The newly assigned judge after review issued an order explaining that he cannot proceed because he was not the sentencing judge and thus is unable to carry out the purpose of the limited remand. The appellants in turn ask this court to reverse the district court's ruling and order the newly assigned judge to carry out the limited remand in light of the sentencing judge's recusal from the case. Rather than directing the newly assigned judge to follow the procedure set forth in Paladino, we believe the better approach would be to vacate the appellants' sentences and remand to the newly assigned district judge with a clean slate for resentencing. This approach both makes sense and is true to the spirit of Paladino and its progeny.
We recite only those facts necessary for this opinion but point out that a more complete recitation of the underlying facts may be found in our previous unpublished order. See United States v. Bonner, Nos. 02-4272 & 03-1288 (7th Cir. May 20, 2005) (unpublished). Vernon and Maria Magana Bonner were found guilty of wire fraud and theft of government funds. Maria also was found guilty of mail fraud and theft of educational funds. The district court sentenced both Vernon and Maria to 78 months' imprisonment, ordered them to pay restitution, barred Vernon from receiving any future social security benefits until restitution had been paid in full, and barred Maria from receiving any federal benefits until restitution was paid. In our May 20, 2005, order, we vacated the restriction on their eligibility for benefits and remanded the case to the district court for the entry of corrected judgments. We also directed a limited remand pursuant to Paladino, asking the district court to indicate whether it would have sentenced the appellants differently under the advisory guidelines. Id.
The first sentencing judge, Judge Hart, recused himself from further proceedings on remand and recommended to the Executive Committee for the United States District Court for the Northern District of Illinois that the case be reassigned to another judge. Upon reassignment, Judge Lindberg issued a minute order explaining that it appears "that only the sentencing judge can make the determination required by Paladino, and Paladino provides no course of action for a situation such as this." He thus concluded that he was unable to carry out the purpose of the limited remand and refused to proceed. In denying the appellants' motion to reconsider, Judge Lindberg again relied on the language in Paladino referring to the "sentencing judge," and he explained that whether he may conduct proceedings on remand is an issue for this appellate court, not him, to decide.
Our review of the Bonners' sentences imposed prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), is for plain error only because they did not object based on Sixth Amendment or Apprendi grounds in the district court. See Paladino, 401 F.3d at 481. In Paladino, our court outlined the procedure for determining whether an error, such as a sentence imposed under a guidelines regime that was thought to be mandatory, constitutes a correctable plain error. Id. at 481-83. We went on to explain that even where plain error exists, such an error is not correctable without proof that intolerable prejudice or a "miscarriage of justice" has occurred. Id. at 481. In order to determine whether such prejudice exists, we are required to ascertain whether the "sentencing judge would have given the sentence he did even if he had not misunderstood the legal effect of the guidelines." Id. at 482 (emphasis added). Accordingly, this court agreed on a procedure whereby the court would order "a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence." Id. at 484 (emphasis added).
This, by its very nature, is a subjective determination. Indeed, in Paladino we stated that the case should be remanded to the "sentencing judge," not just any judge who might be available. Cf. Fed. R. Crim. P. 25(b) (1); United States v. Soto, 48 F.3d 1415 (7th Cir. 1995). We therefore conclude that, according to Paladino, the only person who could really tell us whether he would have imposed the same sentence based on the facts and evidence of a particular case is the original "sentencing judge." In his dissent to rehearing en banc in Paladino, Judge Ripple acknowledged the subjective requirements of a Paladino remand when he voiced concern over the uncertainty that would result in cases where "retirement, disability or death has made impossible consultation with the district judge who imposed the unconstitutional sentence." Paladino, 401 F.3d at 487 (Ripple, J., dissenting). The fact is that, in order for an appellate court to determine that a "miscarriage of justice" has not occurred, Paladino makes clear that an appellate court must be confident that the sentencing judge would have given the same sentence. Id. at 482. We fail to see how this court could possibly be "confident" that the sentencing judge would have given the same sentences in this case unless he has reassured himself after a further proceeding and we are able to ask him.
The Second and the Ninth Circuit have addressed this issue and reached similar conclusions, although they employ slightly different remand procedures. See United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005); United States v. Garcia, 413 F.3d 201 (2d Cir. 2005). Similar to the decision we reach today, the Ninth Circuit held that a full remand for a resentencing hearing, rather than its standard limited remand, was appropriate in a case where the district court judge had retired while the case was on appeal. Sanders, 421 F.3d at 1052. The Second Circuit, in contrast, concluded that a successor judge may conduct proceedings on limited remand when the original sentencing judge was unavailable, reasoning that the district court as an institution, not an individual judge, analyzes whether a defendant's sentence would have been the same under an advisory guidelines system. Garcia, 413 F.3d at 226. When the original sentencing judge is unavailable, however, the Second Circuit requires the presence of the defendant and requires the successor judge to consider what sentence he or she would have imposed on behalf of the court post-Booker rather than try to speculate what the original sentencing judge would do. Id. at 228-30; cf. Fed. R. Crim. P. 43(b) (3). These qualifications led the Ninth Circuit to observe that there is no substantive difference between the procedures adopted by the two circuits. "Whether the new district judge is imposing a new sentence in a full resentencing hearing, or determining in a Garcia modified limited remand whether he or she would have imposed a materially different sentence than that imposed by the original judge, a full review of the record is required. Further, in both cases the defendant must be produced and given an opportunity to be heard." Sanders, 421 F.3d at 1052.
Vacating the appellants' sentences and remanding for a new sentencing hearing allows the newly assigned judge to proceed with a clean slate. Unlike the typical case contemplated in Paladino, we cannot simply ask the sentencing judge whether he would have given a different sentence and "thus dispel [ ] the epistemic fog." Paladino, 401 F.3d at 484. Accordingly, we see no purpose in restricting a newly assigned judge to comparing the sentence he would impose post-Booker, armed with the knowledge that the guidelines are advisory, to the sentence initially imposed by a different judge operating under the assumption that the guidelines were mandatory. Instead of being constrained by the proceedings conducted before the original sentencing judge, the successor sentencing judge will now be able to consider the entire record, consider additional evidence, including witness testimony, hear from the defendant if he or she desires, and hear arguments from the defense and prosecution alike. "In the post-Booker world, sentencing judges have discretion to weigh a multitude of factors that were not ordinarily relevant or appropriate to consider under the previous regime." 401 F.3d at 487-88 (Kanne, J., dissenting) (citing the example of specific offender characteristics set forth U.S.S.G. § 5H1 such as age, family ties and responsibilities, and employment record). Also, unlike a limited Paladino remand, the defendant will have an absolute right to be present during the hearing. See Fed. R. Crim. P. 43(a) (3). The new sentencing judge will start with a blank page and there is nothing to preclude him from imposing the same sentence, a lighter sentence or a harsher sentence as long as the sentence imposed is reasonable and the 18 U.S.C. § 3553(a) factors are considered. See, e.g., United States v. Newsom, 428 F.3d 685, 686-87 (7th Cir. 2005), cert. denied, 2006 WL 271816 (2006); Paladino, 401 F.3d at 484.
The procedure we establish today is applicable whenever the original sentencing judge is unavailable to carry out a remand from this court in accordance with the terms set forth in Paladino, regardless of whether the judge is unavailable due to recusal, retirement, absence, death, sickness or other disability. If the sentencing judge becomes unavailable following a limited remand under Paladino, the successor judge should notify this court of the unavailability of the original sentencing judge. This court, in these unusual and rare circumstances, will then vacate the defendant's sentence and remand for a complete resentencing hearing in order to permit the successor judge to sentence the defendant in conformity with the mandates of Booker.
Accordingly, IT IS ORDERED that the appellants' motion to direct the district court to carry out a limited remand under Paladino is DENIED. The appellants' sentences are VACATED, and their cases are REMANDED to the district court for resentencing.