SUNSHINE WEEK: Courts weigh transparency, student privacy

In the past year, courts across the country have tried to interpret the meaning of the federal student privacy law, known as FERPA. Several recent rulings suggest the Family Educational Rights and Privacy Act does not protect the vast array of information about students that some universities have claimed.

FERPA was passed by Congress in 1973, and allows the Department of Education to pull federal funding of schools that have a policy or practice of releasing “education records” with the permission of students. The exact scope of that law – and how it interacts with the state public records laws used by journalists and citizens nationwide – has been debated for years.

During Sunshine Week 2011, the following FERPA developments from the past year are worth noting.

Media awaits first hearing in lawsuit over UNC-Chapel Hill athletic records

A group of news organizations sued the University of North Carolina at Chapel Hill in October for access to athletic records withheld under FERPA.

The media outlets are seeking records of the university’s internal investigation into possible misconduct surrounding the school’s football program. Specifically, the reporters asked for the unredacted telephone records of the athletic director and head football coach, parking tickets issued to 11 players, and the names of those who received athletic scholarships.

The NCAA is also conducting an investigation into whether football players received improper benefits from sports agents, and possible academic violations involving a former tutor.

UNC denied the media’s records requests, arguing the information is confidential and protected from disclosure by FERPA.

The media groups, including the student-run Daily Tar Heel newspaper, argue the university is violating the North Carolina Public Records Act.

An initial hearing in the case has not yet been scheduled.

Florida State’s NCAA appeal is not protected by FERPA

The news media prevailed last May in an open-records suit against Florida State University, as the state’s highest court decided not to hear the case.

The dispute stemmed from allegations that FSU employees violated NCAA rules and gave preferential treatment to student athletes. The NCAA fined the university, which appealed the decision.

When reporters from the Associated Press asked for a transcript of the appeal hearing, the university cited FERPA in denying the request. In October 2009, Florida’s First District Court of Appeals held that the 695-page transcript was not protected from review.

“[T]hese records pertain to allegations of misconduct by the University Athletic Department, and only tangentially relate to the students who benefitted from that misconduct,” the court held.

FSU then made the transcript public, though the NCAA appealed to the Florida Supreme Court, saying its rules enforcement process depends on confidentiality. In May, the court declined to hear the case.

Federal judge: FERPA does not require schools to withhold records

A federal court in Illinois ruled this month that FERPA does not bar the release of student records under a state open records law.

The Chicago Tribune sued the University of Illinois, seeking access to records as part of an investigation into the university’s admissions practices. The paper sought the names of certain applicants’ parents and their addresses, the names of anyone who contacted the university on the applicants’ behalf and any documents showing a status change for those applications because of contact with a university employee.

The newspaper was investigating the possibility that preferential treatment was given to relatives of influential people who applied to the university. Citing FERPA, officials denied a request for the records under the Illinois Freedom of Information Act.

In a March 7 decision, Judge Joan Gottschall held that FERPA did not protect the records from disclosure. The Illinois state law, like many others across the country, exempts records that are specifically prohibited from disclosure by federal law. Gottschall held that while FERPA sets conditions on receiving federal funding, it does not specifically bar universities from releasing education records.

“FERPA does not impose any requirement on state officials,” the judge wrote. “The state has the option to choose whether or not to accept FERPA’s conditions.”

The ruling leaves open the possibility that the records can still be withheld under other exemptions to the Illinois public records law, including one for invasions of personal privacy.

The university has until April 5 to appeal.

UF Student Senate recordings not shielded by FERPA

A state court judge in January ordered the release of video recordings of University of Florida Student Senate meetings, finding them not protected by FERPA.

Frank Bracco, a former UF student, requested copies of the tapes in an attempt to provide greater transparency of the student government. The university denied the recordings, citing FERPA, and Bracco filed suit.

Judge Victor Hulslander reviewed a DVD of the recordings and found that “the proceedings relate generally to topics of importance to students and may identify specific students, but not as a focus of the record.”

Moreover, the judge found it inconsistent that the meetings themselves were open to the public, yet the recordings of the meetings were confidential.

Bracco said he has received the one record that was the subject of the judge’s decision, and is still working to get access to others. He said he offered to consolidate several of his records requests.

“If they deny them again or try to redact them again we might end up in mediation or court, worse comes to worse,” Bracco said.

FERPA cases goes to Iowa’s highest court

The Iowa Supreme Court will decide whether FERPA prevents the release of University of Iowa records about alleged sexual assault on campus.

The Iowa City Press-Citizen newspaper requested records about reported sexual assaults on campus beginning in October 2007. According to the newspaper, the request did not specify a particular incident, though two former university football players were charged in connection with an October 2007 sexual assault in a university dorm.

The university withheld some 3,000 pages of documents, according to the newspaper’s brief, arguing they are confidential under FERPA. A lower court judge ordered the release of some of the disputed documents, including some with student information redacted. The judge also awarded the newspaper $30,500 in attorney fees.

Attorneys for the University of Iowa appealed, and the Iowa high court heard arguments in the case Oct. 15.

The university argues it cannot release the records, even in redacted form, because the newspaper “knows the identity” of the students involved. It also argues that, in the event of a conflict, FERPA should trump the Iowa Open Records Act.

“The documents include information regarding the alleged victim’s housing situation, handwritten notes concerning the details of the assault of the student... and how the athletic department handled the victim’s continued participation in athletic department events,” according to the university’s appeal. “A student’s response to a sexual assault is private information, the dissemination of which FERPA is designed to prevent.”

Media organizations, including the Iowa Newspaper Association, the Associated Press and the Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of the Press-Citizen.

The court’s decision could come at any time.

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