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ARLINGTON, Va. — The Student Press Law Center ("SPLC"), the nation's leading advocate for the legal rights of college and high-school journalists to gather and publish news, is cautioning that key provisions in proposed federal education privacy rules will result in denying the press and public access to important information necessary to keep schools accountable.

If adopted as proposed, draft rules pending before the U.S. Department of Education ("Department") would require public schools and colleges nationwide to reject lawful requests for even anonymous, numerical information that includes no student identities, such as the number and nature of penalties the school has imposed for plagiarism.

SPLC filed written comments May 8 urging the Department to reconsider the proposed rules, which purport to clarify schools' privacy obligations under the Federal Educational Rights and Privacy Act ("FERPA"), also known as the Buckley Amendment. FERPA requires schools and colleges that receive federal funding to refrain from releasing individual students' educational records to the public, often conflicting with state open records laws that would otherwise make school documents publicly accessible.

Although FERPA requires that schools withhold only records that contain educational information about named individuals, the Department is proposing to expand the reach of FERPA by also requiring that schools deny requests for information if it is believed that the requestor has particular individuals in mind – even if the records do not disclose any private identifying information.

Frank D. LoMonte, an attorney and executive director of the Student Press Law Center, said: "The Department's proposal would require school employees to 'read the minds' of people requesting public documents, with the illogical result that the very same piece of paper will be an open record to one requestor and a confidential educational record to the next requestor, based on the subjective judgment of a school employee. This unmanageable patchwork rule will lead to needless delays and disputes, and will do nothing to protect any student's legitimate privacy interests."

According to the Department's own description of how the proposed rule would work, schools will be able to invoke FERPA to deny requests even for anonymous statistical information — such as a demographic breakdown of the school's graduating class, or the manner in which cheating cases were punished — if the numbers are small enough that the school believes the requestor knows the identity of the unnamed students to whom the records apply.

"If the record is itself not individually identifying or confidential, it does not matter under the law what the requesting party is able to do with that record and his own knowledge," the SPLC said in comments filed with the DOE. "That the requestor is able to use independently gathered knowledge to add significance to a generic document is simply good journalism; it is not (and should not be made into) a privacy violation on the part of the school."

SPLC also urged the Department to reconsider other elements of the proposed regulations, which would: (1) extend FERPA confidentiality obligations to cover third parties that contract with schools and colleges, and (2) define as confidential "education records" documents that are created even after a student is no longer enrolled, such as agreements to settle disputes arising out of events that took place during enrollment.

"FERPA already is generating too many 'false positives' that result in the wrongful denial of legitimate, newsworthy information requests," SPLC said in its comments. "Because FERPA overrides states' policy decisions to open their government records, the Department's rules should make clear that FERPA is to be narrowly construed and that any close judgment calls must be resolved in favor of openness."

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.