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Judge: FERPA not justification for prior restraint on Wyo. newspapers

May 25, 2010

WYOMING -- A Wyoming judge ruled Tuesday to dissolve a temporary restraining order against the Wyoming Tribune Eagle and the Cheyenne Herald that prevented the newspapers from publishing a leaked report concerning the president at Laramie County Community College.

On April 12, the college initially denied the Tribune Eagle access to the report based on a claim that disclosure would violate the Family Educational Rights and Privacy Act, or FERPA. On May 21, the Tribune Eagle, through an anonymous source, received a copy of the report, which contains information regarding President Darrel Hammon's conduct while chaperoning a 2008 student trip to Costa Rica.

A Tribune Eagle reporter called the college for an interview the morning of May 21, and by that afternoon the paper had received a restraining order issued by Judge Peter Arnold, said Tribune Eagle executive editor Reed Eckhardt. The order blocked the newspapers from publishing any information regarding the report for at least 10 days.

The Cheyenne Herald posted portions of the report on its website without contacting the college first. However, it then removed the report after Arnold issued the injunction, said Dave Featherly, publisher and editor of the Herald.

The lawyers representing the college maintained that since the report also contains student names, releasing any information pertaining to the report would violate provisions of FERPA and put the school in danger of losing all U.S. Department of Education funding, according to the court order.

In his Tuesday ruling, the judge said that there was no substantial evidence to show that publication of the material would be a violation of FERPA jeopardizing the college's federal funding. Both parties agreed to submit their respective documents to the judge over the weekend for his review in place of having a hearing.

"My client is gratified with the careful consideration of the court and its accurate reflection of the law," Bruce Moats, attorney for the Tribune Eagle, said. "The larger picture here is the whole idea of allowing the college to go through the court to try to reach into the composing room and direct what is going to be published. If the newspaper does something wrong, then that can be addressed after the publication. That's the appropriate time, not before."

In fact, Moats said court-ordered injunctions are practically unheard of in the United States. The Wyoming Press Association and the Society of Professional Journalists both came out with statements condemning Arnold's initial prior restraint order.

"The judge made the right call and the only call he could make under the First Amendment. Nothing less than an imminent danger to the country's national security justifies restraining a newspaper from publishing," said Frank LoMonte, executive director of the Student Press Law Center. "Its disturbing that a college would hide behind a bogus claim of confidentiality to conceal unflattering information. FERPA is about having an effective confidentiality policy -- the department [of education] is not going to shut down an entire college for a single disclosure."

Eckhardt said the contents of the report focus on the president's actions, not the students', and that the paper has a story prepared to run in Wednesday's paper about the report with the student names edited out.

"From my perspective, it's not anything that's shocking or that would cause him [the president] to lose his position," Eckhardt said. "It's somewhat frustrating for me that the college would go through this much effort to withhold information that clearly in my mind belongs to the public domain. That they would go to these kinds of measures to withhold this report is particularly concerning."

The lawyer for Laramie County Community College hadn't returned calls as of press time.

By Sommer Ingram, SPLC staff writer

© 2010 Student Press Law Center

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