OPINION
FRIEDLANDER, Judge
Eric J. Meury and his parents, Herman G. Meury and Carol A. Meury (collectively the Meurys), appeal the trial court’s dismissal of their action against Eagle-Union Community School Corporation, Russell E. Hodgkin, Jack Schroeder, and Jean Keneipp (collectively the Defendants). As restated, the Meurys present one issue on appeal:
Was their amended complaint subject to Ind. Trial Rule 12(B)(6) dismissal for failure to state a claim?
We affirm.
The facts, as alleged in the Meurys’ amended complaint and as gathered from the record as a whole, disclose that during the relevant time period, Russell Hodgkin was principal at Zionsville Community High School, Jack Schroeder was the director of the guidance department, and Jean Keneipp was the secretary at the guidance office. Eric was a student at the high school.
In October 1994, Eric’s parents
wrote a letter to “Dr. Hodgkin [and] To all Staff of
EUSC (present & future)”.
Record
at 18. The handwritten portion of the letter urges that disclosure of some information contained in Eric’s school records would violate his privacy under federal statutes. The letter refers to removing Eric from one teacher’s class due to philosophical differences, and a “resolution [as] to Eric’s immature judgement ... (written information on Behavior Modification)”, stemming from Eric giving a student a flyer regarding an event which contained “art work of the event’s interpretation by another student”.
Record
at 18. In the upper left corner of the letter appears a typewritten excerpt of unreferenced material regarding review of school records for inaccurate, damaging, or misleading information and the right to request the removal of such material or request a hearing.
Sometime later Eric contacted colleges and scholarship granting organizations which required copies of his school transcripts. The Meurys discovered that the letter was sent with transcript information when requests were made. According to the Meurys’ complaint, Sehroeder and Keneipp informed them that Hodgkin attached to the letter a note stating “put in Eric’s file and sent (sic) it out with transcripts.”
Record
at 14 and 57.
In April 1997, the Meurys filed their complaint requesting damages, punitive damages, and an injunction. In an apparent effort to establish a malicious intent for including the letter with Eric’s transcripts, the complaint provides background information on Carol and Herman’s strained relationship with Hodgkin and the school system. The letter is attached to the original complaint and forms the basis for.the Meurys’ assertion that their privacy rights were violated under common law, statutory provisions, and constitutional provisions. They specifically complain that their rights were violated under the Family Educational Rights and Privacy Act (FERPA)
and its amendments.
After requesting extensions to file an answer, the Defendants filed a motion to dismiss, pursuant to T.R. 12(B)(6), for failure to state a claim. The Defendants have not filed an answer. The Defendants’s motion to dismiss particularly noted that FERPA does not provide for a private cause of action, but instead is enforceable by the United States Secretary of Education by means of funding sanctions. In response to the Defendants’s motion to dismiss, the Meurys filed their “First Amended Complaint” on October 14, 1997.
Record
at 53.
The amended complaint in six counts contains an introductory statement with an historical background, a factual background, and a section designated “Malicious distribution of harmful document by Defendants”.
Record
at 56. As in the original complaint, the amended complaint is based upon dissemination of the letter.
The allegations are substantially the same as in the original complaint, except the amended complaint invokes 42 U.S.C. § 1983 as a means to enforce FERPA. The amended complaint requests damages, punitive damages, and an injunction in order to redress: the lost opportuni
ties, the intentional infliction of emotional distress, the violations of state and federal privacy rights, and the violation of the “educational policy” of Indiana. The complaint includes a request for a permanent injunction on behalf of all students and parents of Eagle-Union to prevent future conduct similar to that which forms the basis for the complaint. Because the amended complaint is crucial to this appeal, it is prudent to reproduce substantive portions here:
COUNT I
22. The conduct of Hodgkin, Schroeder and Keneipp, acting in their individual capacity and as agents and employees of [Eagle-Union], was in violation of Plaintiffs (sic) rights under the Family Education Rights and Privacy Act of 1974, as amended. (20 U.S.C. Sec. 1232g) as well as the common law and constitutional privacy right of the Plaintiffs under the laws and Constitution of the United States.
23. Said conduct was calculated to and did harm Eric, Carol and Herman, by interfering with Eric’s opportunity to attend college; by harming his opportunity to obtain scholarship aid from colleges and universities and private organizations that grant scholarship aid; and by injuring his reputation in the academic communities to which he aspired.
24. Plaintiffs believe that the inclusion of the October 14, 1994 letter with Eric’s transcript cost him a swimming scholarship at the University of Indianapolis; and caused him to lose scholarships offered by various private organizations, all to their damage in the amount of $28,200.00.
25. As a result of Defendants’ actions, Plaintiff (sic) Eric, Herman and Carol each suffered mental anguish and suffering, as well as monetary loss, for which they are entitled to damages from Defendants in [an] amount sufficient to compensate them for their losses.
26. The conduct of Defendants was conducted under color of State law.
27. This action is brought under the provisions of 42 U.S.C. See.1983
et seq.
WHEREFORE, Plaintiffs pray for judgment against Defendants in [an] amount sufficient to compensate them for their losses, for their attorneys fees, costs, and all other relief proper in the premises.
* * *
COUNT II
# * *
29. The acts and actions of Defendant Hodgkin were taken purposely, intentionally and maliciously so as to injure Eric, well knowing that such injury to Eric would cause extreme mental anguish to his parents, Carol and Herman, all in retaliation against Carol and Herman for their activities in the Zionsville Community High School community.
30. Hodgkin well knew that including material such as the October 14, 1994 letter with the transcript was in violation of statutory and common law and in violation of the privacy rights of Eric, Carol and Herman.
WHEREFORE, Plaintiff (sic) pray for punitive damages against Hodgkin in such amount as will punish him for his conduct and will deter him from taking such action against other students in the future; for their attorneys fees and costs, and for all other relief proper in the premises.
* *
COUNT III
32. The conduct of [Eagle-Union] constituted a violation of Plaintiffs’ rights under the Family Educational Rights and Privacy Act of 1974, as amended, and violated the privacy rights of the Plaintiffs under the Constitution of the United States.
33. Unless restrained, [Eagle-Union] will continue to violate the rights of students by including extraneous, harmful information in the copies of transcripts sent to colleges, universities and other institutions.
WHEREFORE, Plaintiffs pray for a permanent injunction against [Eagle-Union] enjoining said corporation from so vio
lating the rights of their students and the parents of said students, for their costs and attorneys’ fees, and for all other relief proper in the premises.
COUNT TV
35. The conduct of Defendants, and each of them, was in violation of Plaintiffs’ rights under the common law, statutes and Constitution of the State of Indiana, and of the educational policy of the State of Indiana, including the right of confidentiality and privacy.
WHEREFORE, Plaintiffs pray for damages against Defendants and each of them in [an] amount sufficient to compensate them for them losses, for their attorneys fees, costs and all other relief proper in the premises.
Record
at 57-61. Count V against Hodgkin incorporates allegations contained in Counts I and II and reiterates the prayer for punitive damages. Count VI against Eagle-Union incorporates allegations contained in Count I, alleges violations of common law, statutes and Indiana’s Constitution, and reiterates Plaintiffs’ requests for an injunction, costs, and attorney fees.
The Defendants filed a motion to dismiss the first amended complaint. After motions in response and a hearing, the trial court granted the Defendants’s motion stating “the First Amended Complaint is dismissed for failure to state a cause of action under Indiana Trial Rule 12.”
Record
at 112.
When reviewing the dismissal of a complaint for failure to state a claim under T.R. 12(B)(6), this court views the pleadings in a light most favorable to the plaintiffs and draws every reasonable inference in favor of the plaintiffs.
Ratliff v. Cohn,
693 N.E.2d 530 (Ind.1998). This court will not assess the sufficiency of facts supporting the complaint, but determines if the complaint states any set of allegations upon which the trial court could grant relief.
McDonald v. Smart Professional Photo,
664 N.E.2d 761 (Ind.Ct.App. 1996). “To state a claim for relief, a complaint need only contain (1) a short and plain statement of the claim and (2) a demand for relief.
See
Ind. Trial Rule 8(A).”
Id.
at 764. The rules of procedure, based on notice pleading, do not require a complaint to state all elements of a cause of action. Therefore, a T.R. 12(B)(6) motion should be granted only where it is clear on the face of the complaint that under no circumstances could relief be granted.
Id.
A successful T.R. 12(B)(6) motion will be affirmed on appeal when a complaint states a set of facts and circumstances, which, even if true, would not support the relief requested.
Minks v. Pina, City of Hammond et al.,
709 N.E.2d 379 (Ind.Ct.App.1999);
Right Reason Publications v. Silva,
691 N.E.2d 1347 (Ind.Ct.App.1998). We will affirm the trial court’s dismissal of an action if the judgment is sustainable on any theory or basis found in the record.
Id.
The Meurys assert that Defendants merely question the factual bases for the complaint which is impermissible when testing the sufficiency of a complaint to withstand a T.R. 12(B)(6) motion to dismiss. The Defendants answer that the totality of facts, circumstances, and allegations asserted by the Meu-rys do not, under any circumstances, state claims upon which relief could be granted. We will address the federal and state claims separately.
Three reasons dictate a finding that the Meurys have failed to present viable federal claims. First, FERPA explicitly provides for a funding remedy with enforcement vested exclusively in the Secretary of Education. Second, FERPA is aimed at educational agencies or institutions with a “policy or practice” of 1) denying inspection to parents or students, or 2) releasing educational records without the parents’ or student’s consent to those other than those specifically excepted. Third, the letter did not disclose the substance of any private information, thus, dissemination of the letter to postseeondary educational and scholarship-granting institutions, based upon the Meurys’ request that Eric’s educational records be sent to the facilities, does not bring the Meu-
rys’ claim within the purview of FERPA and did not violate federal right to privacy tenets.
The Meurys acknowledge that FER-PA does not contemplate or support a private cause of action. Instead, they direct this court to cases which have held that FERPA violations may give rise to a private cause of action when the remedies under 42 U.S.C. § 1983 of the civil rights act are importuned.
See, e.g., Doe v. Knox County Board of Educ.,
918 F.Supp, 181 (E.D.Ky.1996) (§ 1983 will support FERPA claims in an action wherein the educational records and medical condition of a student were disclosed to a newspaper and printed in an article);
Maynard v. Greater Hoyt School Dist.,
876 F.Supp. 1104 (D.S.D.1995) (while § 1983 will support FERPA claims, the school board was not liable because it did not act under its own policy or custom for disclosing information to a newspaper reporter);
Belanger v. Nashua, N.H. School Dist.,
856 F.Supp. 40 (D.N.H.1994) (parent had a valid FERPA claim pursuant to § 1983 for school district’s failure to provide her with juvenile court records made a part of her son’s educational records).
The enforcement provisions within FER-PA explicitly provide that the Secretary of Education is solely responsible for enforcement, thereby preempting a private cause of action. The Secretary of Education may withhold funds to schools with a “policy or practice” violative of the provisions of the statute. Under the subsection of the act entitled “Enforcement; termination of assistance,” the provision states:
The Secretary shall take appropriate actions to enforce this section and to deal with violation of this section, in accordance with this chapter, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with this section, and he has determined that compliance cannot be secured by voluntary means.
Id.
Even the Secretary is not empowered to enforce the funding termination provisions unless two components are met: 1) there is a failure to comply with the statute,
and
2) compliance cannot be voluntarily obtained.
The Defendants direct us to a federal case which we find instructive. In
Norris v. Board of Education,
797 F.Supp. 1452 (S.D.Ind.1992), the court found that a § 1983 claim would not support a private cause of action under FERPA. The court recognized that procedurally the plaintiffs had properly raised a § 1983 claim but that substantively FERPA is insufficient to support a § 1983 action for damages.
Id.
The court said:
The FERPA provides expressly that the Secretary of Education is responsible for enforcing the provisions and protections of FERPA; Section 1983 does not create a private right of action for damages where the federal statute provides an exclusive administrative enforcement mechanism.
Id.
at 1465. As noted, FERPA explicitly provides for funding remedies to be enforced by the Secretary of Education in a prescribed manner. The Meurys have failed to state a private cause of action by invoking § 1983 to remedy an alleged FERPA violation.
Further, denial of funding for FERPA violations is explicitly aimed at educational agencies or institutions with a “policy or practice” of denying parents or students access to educational records under the provisions of 20 U.S.C. § 1232g(a) or releasing educational records without consent pursuant to the provisions of 20 U.S.C. § 1232g(b). The lengthy factual background provided in the Meurys’ complaint and their reliance upon the single letter do not reveal a “policy or practice” set or enforced by the Defendants.
See Maynard v. Greater Hoyt School Dist.,
876 F.Supp. 1104 (school board was not liable for alleged FERPA violation because it did not act under its own policy or custom for disclosing information given to a newspaper reporter).
Moreover, the dissemination of the letter along with the educational records that the Meurys requested to be sent to the various postsecondary and scholarship-granting institutions, only one of which they specifically name, does not establish a violation of FERPA, or of federal right to privacy tenets. On its face, the letter appears to be nothing more than an explanation of the actions taken by the Meurys regarding Eric’s education and behavior, as opposed to a reference to
actions taken by the school. The thrust of the letter appears to partially satisfy FER-PA’s requirement that the parents be provided “an opportunity for the correction or deletion of any ... inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records.” 20 U.S.C.A. § 1232g(a)(2). The letter comports with FERPA’s requirement that the parents be allowed to include explanatory material in a student’s education records.
See
John E. Theuman, Annotation
Validity, Construction, and Application of Family Educational Rights and Privacy Act of 1974,
112 A.L.R. Fed. 1, 1993 WL 837778 (1993) (suggesting that parents or students who have not been allowed to explain or amend inaccurate or misleading records may then request a hearing to challenge the content of the records).
While it is true that the letter could leave a reader with the impression that disciplinary action was taken, the statute specifically allows inclusion of disciplinary records in the education records
of a student, and allows that information to be disseminated in some circumstances. FE RPA provides:
Disciplinary records; disclosure
Nothing in this section shall prohibit an educational agency or institution from—
(1) including appropriate information in the education record of any student concerning disciplinary action taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community; or
(2) disclosing such information to teachers and school officials, including teachers and school officials in other schools, who have legitimate educational interests in the behavior of the student.
20 U.S.C.A. § 1232g(h). Inclusion of the letter with records sent to postsecondary educational institutions and scholarship-granting bodies, at the request of the Meurys, does not appears to violate FERPA even if, as the Meurys urge, the letter is characterized as a reference to disciplinary matters. The Meu-rys do not allege that any other educational records with disciplinary matters exist or were disseminated by the Defendants if such records do exist.
As noted by the Defendants, the letter merely asserts rights and does not contain the substance of any controversy which may have existed. Disclosure of the Meurys’ letter, alone, does not establish a violation of FERPA.
To the extent that the Meurys’ complaint can be read to assert a federal constitutional claim of the right to privacy as a separate basis for recovery apart from FER-PA, that claim too must fail in the context of disclosure of the Meurys’ letter. The Meurys direct this court to
Whalen v. Roe,
429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and
Norris v. Board of Education,
797 F.Supp. 1452, for the proposition that “[a]n individual has a constitutionally protected in
terest in avoiding disclosure of some personal matters, ... and that interest might extend to a student’s interest in his records.” Appellant’s Brief at 15.
In
Whalen,
the plaintiffs asserted that a state statute which required a computerized data base with the names and addresses of patients who were prescribed legal but controlled substances invaded a constitutionally protected “zone of privacy.”
Whalen,
429 U.S. at 598, 97 S.Ct. 869. The Court recognized the evolving, but amorphous, right of privacy as a penumbral right “founded in the Fourteenth Amendment’s concept of personal liberty.”
Id.
at 598 n. 23, 97 S.Ct. 869;
see, e.g., Albright v. Oliver,
510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994);
Roe v. Wade,
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Court did not find that a generalized right to privacy exists, and determined that the possibility that private information would be improperly disclosed was outweighed by the legitimate state interest in regulating controlled substances. The Court noted the decision in
Paul v. Davis,
424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which found that any federally protected right to privacy does not encompass the dissemination of embarrassing facts about a person, whether intentional or negligent.
Here, we do not examine a governmental entity’s right to gather information or disseminate that information. The Meurys specifically requested that Eric’s records be sent to other educational and scholarship-granting institutions. The lengthy factual background provided in the complaint could persuade a reader to attribute a rancorous purpose for disseminating the letter, even though, as we noted above, inclusion of the letter in the educational records can be viewed as explanatory information. Yet, the fact remains that the letter itself, whether distributed malevolently, benevolently, or negligently, does not contain substantive private information and cannot form the basis for an action alleging a federal right to privacy violation. The Meu-rys have failed to present any viable federal claims.
Turning to the state claims, the Meurys’ complaint is insufficient to survive a T.R. 12(B)(6) dismissal. First, the Meurys’ undefined state common law and statutory tort claims are barred. Claims against school corporations and their employees are subject to the Indiana Tort Claims Act (ITCA) notice of claims provisions.
Van-Valkenburg v. Warner,
602 N.E.2d 1046 (Ind.Ct.App.1992) (citing portion of ITCA in effect at the time which includes school corporations as political subdivisions requiring compliance with the notice provisions of ITCA);
Bienz v. Bloom,
674 N.E.2d 998 (Ind.Ct.App.1996) (notice required to a political subdivision and an employee of a political subdivision sued in her individual capacity in an action for defamation, intentional infliction of emotional distress, and retaliatory discharge),
trans. denied,
683 N.E.2d 595;
Lake County Juvenile Court v. Swanson,
671 N.E.2d 429 (Ind.Ct.App.1996) (failure to file tort claims notice operates to bar claims against employees of governmental entity),
trans. denied,
683 N.E.2d 588. A tort lawsuit against a political subdivision is barred absent the timely filing of a tort claim notice.
See Kellogg v. City of Gary,
562 N.E.2d 685 (Ind.1990);
see also McConnell v. Porter Memorial Hosp.,
698 N.E.2d 865 (Ind.Ct.App.1998) (statute requiring a notice of claim to a governing body is liberally applied to plaintiffs),
trans. denied,
706 N.E.2d 182. “The question of compliance is not a question of fact, but rather a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial.”
Madden v. Erie Ins. Group,
634 N.E.2d 791, 793 (Ind.Ct.App.1994).
The record does not reveal a tort claim notice. The fact that the Defendants here did not raise the Meurys’ failure to comply with the notice provision may be attributable to the fact that the dismissal occurred before the Defendants filed their answer and included affirmative defenses.
Cf. Board of Comm’rs v. Briggs,
167 Ind.App. 96, 340 N.E.2d 373 (1976) (failure to file a notice of claim should be raised with affirmative defenses).
ITCA notice provisions are inapplicable to § 1983 claims, even when presented in a state court forum.
See Kellogg v. City of Gary,
562 N.E.2d 685;
Werblo v. Board of Trustees of Hamilton Heights School Corp.,
537 N.E.2d 499 (Ind.1989) (tort claims notice not applicable to a teacher’s civil rights claim against school district which arose from her discharge);
George v. Hatcher,
527 N.E.2d 199 (Ind.Ct.App.1988) (the supremacy clause preempts ITCA tort claim rules in a § 1983 action). Nevertheless, even when inapplicable to federal claims, ITCA will apply to pendent state court claims made at the same time.
See Estate of Conner v. Ambrose,
990 F.Supp. 606 (N.D.Ind.1997). Accordingly, the Meurys have no claim that their tort claims based upon state law are salvaged by allegations of federal civil rights violations.
The remaining claims are those under the Indiana Constitution and the constitutional claims for injunctive relief. The Meurys claim a state constitutional right to privacy.
They specifically complain that the Defendants’s actions violated a recognized branch of invasion of privacy,
i.e.,
public disclosure of private facts.
Any additional analysis assumes that a constitutional tort would not be barred for failure to comply with ITCA notice requirements. We find, however, that the Meurys have failed to present a cognizable state invasion of privacy claim for two reasons. The letter alone is not actionable, and the nature of the disclosure does not satisfy the publicity component for disclosure of private information.
We held, in the section regarding federal claims, that the letter does not contain substantive private information upon which a violation of the right to privacy could be based. The Meurys specified in their complaint, at the dismissal hearing, and in their brief on appeal that their cause of action is based entirely upon dissemination of the letter. As with the Meurys’ federal right to privacy claim, the Meurys have failed to demonstrate the necessary predicate to a violation.
Additionally, a plurality of the Indiana Supreme Court has characterized invasion of privacy, including public disclosure of private facts, as a sub-tort or “mini” version of other torts such as outrage, trespass, or defamation.
See Doe v. Methodist Hosp.,
690 N.E.2d 681 (Ind.1997). In
Doe,
the plurality opinion details the origin and applicability of such claims. The plurality opinion sounds a note of caution when proceeding in the area of truthful disclosures, inasmuch as such an action sidesteps the most significant defense in the torts of libel or slander,
ie.,
the truth of the disclosed information allows a presumption that no actionable harm could flow.
Id.
The court concluded that the plaintiff in
Doe
had no cause of action for public disclosure of private facts where the “publicity” was to additional co-workers after the plaintiff disclosed the private information to others.
Id.
Here, any such claim also would fail due to the nature of the disclosure. The Meurys base their claim on a truthful disclosure which was made only to parties to whom they requested that private educational information be disclosed. The complaint fails to satisfy the requirements for a state constitutional tort for invasion of privacy.
Finally, our analysis forecloses any claim that Eagle-Union should be enjoined from allowing such information to be disclosed. The circumstances of the present case do not reveal a wrongful disclosure. Thus, no disclosure occurred which Eagle-Union could be enjoined from continuing.
Judgment affirmed.
KIRSCH, J., and MATTINGLY, J., concur.