N.D. attorney general finds university broke open records law

NORTH DAKOTA -- A university cannot hide behind federal privacy laws to refuse to honor an open-records request for information about the disciplinary sanctions levied for violations of student conduct codes, North Dakota's Attorney General has ruled.

Attorney General Wayne Stenehjem issued his opinion after the Grand Forks Herald was denied student-discipline records related to incidents involving anti-Semitic graffiti in May 2008. The newspaper asked for documents with identifying information removed, but the university cited the Family Educational Rights and Privacy Act (FERPA).

The university claimed because one student's name had been released through court documents, the newspaper would be able to identify the student even with the redacted information.

"What we were interested in was what the university's disciplinary action, outside of the court system, has been regardless of what the name of the student was," said Mike Jacobs, the Herald's editor and publisher. "We wanted to be in a position to report how the university was disciplining students who, at least arguably, had violated the law and certainly had violated the code of student conduct."

FERPA, also known as the Buckley Amendment, enables the U.S. Department of Education to penalize colleges and schools that fail to enforce policies making individual students' "educational records" confidential. The Department of Education has interpreted FERPA not only to apply to records containing students' identities, but also those "easily traceable" to individual students.

Stenehjem cited a recent Montana Supreme Court ruling that found "FERPA does not prohibit the release of redacted student disciplinary records."

"To allege that FERPA prohibited the release of disciplinary records under any circumstance was inaccurate and a violation of the open records law," Stenehjem said in his opinion.

Stenehjem acknowledged that the university could withhold "easily traceable" documents pertaining to one student because the student's name was widely publicized; the student was criminally charged in the anti-Semitic graffiti incident, but the charges were dropped. As to all other students, however, the attorney general ruled that FERPA could not be invoked to refuse production of disciplinary records so long as the identifying information was redacted.

The university released the requested, redacted documents to the Herald about four or five days after Stenehjem's opinion, said Executive Associate Vice President for University Relations Peter Johnson. He said the dispute arose mostly over a "different interpretation" of privacy laws.

"Our general perspective is to try to be as open as possible," Johnson said.

Johnson said the university's main concern was whether the Herald would be able to identify a student indirectly because of information regarding disciplinary actions although the names were removed. But Jacobs said the newspaper was not interested in the student's names.

Jacobs said the newspaper's attorney is reviewing the documents to make sure the university complied with the attorney general's ruling.

"We are happy with the attorney general's ruling," Jacobs said. "Whether or not the university has complied with the attorney general's ruling I think is still -- we aren't absolutely certain that that has happened."

FERPA, Grand Forks Herald, news, North Dakota