TRANSPARENCY TUESDAY: Rise in student loan defaults illustrates human toll of economic statistics

Posted: 15th May 2012 by Frank LoMonte in Public Records, Transparency Tuesday
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It’s important, and relevant, to tell the story about the continued employment difficulty facing new college graduates. One way to add depth to the story is to look at the rate at which grads are defaulting on their college loans, which is a pretty good indicator that they’re unemployed or under-employed.

Fortunately, several organizations already gather data that, while not providing an optimally complete and up-to-date picture, can be a starting point for journalists trying to capture the depth of the economy’s toll on young job-seekers.

The U.S. Department of Education’s Federal Student Aid program maintains a searchable database online that shows, by college, how many students are on repayment plans or are in default, for three years running. The figures always have about a two-year lag, however, so — at a public college, where administrators must answer open-records requests — it makes sense to ask whether the school is keeping more up-to-date figures internally.

Knowing whether an institution has an unusually high default rate can be instructive, because it suggests (a) that the college is failing to place its graduates in good-paying employment and/or (b) that the college is charging tuition disproportionately above what its graduates can realistically expect to earn. In extreme cases, the Department of Education can declare a school ineligible for federal financial aid if its alumni consistently fail to repay what they owe.

As reported this week by Bloomberg News, student loan defaults also are a profitable business for the debt-collection industry, which gets to keep a commission on anything recovered from borrowers. There are 90 collection agents on the staff at one of the 32 federal collection contractors alone, Bloomberg reports.

Federal court records also can be illuminating, because the Department of Education brings collection cases in federal court when borrowers are seriously in default. A search of newly filed cases at the nearest U.S. district courthouse, looking at civil actions brought by the Department of Education, should produce the names and numbers of cases, from which journalists can then request the case files.

Syracuse University’s Transactional Records Access Clearinghouse is an amazing reference resource of which journalists should take regular advantage, and its researchers recently compiled a review of collection actions filed by the DOE to give a snapshot of the severity of the default problem.

According to TRAC, student loan recovery actions nationwide spiked at about 600 new cases filed per month in March 2011. Although the rate of lawsuit filings has come down somewhat since then, they showed another spike in March 2012, TRAC reported. By far the largest number of cases — 140 — were initiated in the Central District of California, according to TRAC’s compilation.

This SPLC tip sheet will give you more details about gathering and understanding student loan default data, including the limits of the DOE’s reporting and how to properly hedge on reporting default numbers so as not to give an unrealistically rosy portrayal of the true nonpayment rate.

Tennessee school board vows “investigation” of yearbook over gay student’s profile story

Posted: 10th May 2012 by Frank LoMonte in High School Censorship, Yearbooks
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Responding to fierce public criticism, the Lenoir City, Tenn., school board is investigating the decision to publish an article in the 2012 Lenoir City High School yearbook in which a student describes his decision to come out publicly as gay.

Today’s Knoxville News-Sentinel reports that, during a discussion of the yearbook article at Wednesday’s board meeting, Chairwoman Rosemary Quillen promised “a permanent solution so that situations like this never happen again.”

Nothing was said publicly about the status of English department chairman and yearbook adviser James Yoakley, an 11-year veteran of LCHS who has been the target of public hostility. In an interview with the News-Sentinel, Yoakley described the article as part of the students’ efforts to portray all aspects of the school community, adding, “There’s no higher form of learning than creating, and you have to have independence to create.”

The story, “It’s O.K. To Be Gay,” is one of several personality profiles appearing in the annual, the theme of which is, “In My Element.”

On Monday, the Student Press Law Center sent a letter of concern to Superintendent Wayne Miller and Principal Steve Millsaps explaining that the yearbook article was legally protected speech that could not be censored simply because some audience members might disagree with the writer’s viewpoint:

The yearbook adviser, Mr. Yoakley, would have been breaking the law – and exposing the district to an embarrassing First Amendment lawsuit – had he demanded that the article be censored. By not censoring the article, Mr. Yoakley responsibly performed his duties as a public servant, and he well served the taxpayers of your district, who otherwise would have been looking at years of costly litigation.

The letter pointed out that the Supreme Court explicitly rejected in its most recent student-speech case, Morse v. Frederick, a school district’s argument that it could censor speech merely on the grounds of “offensiveness.”

Lenoir City High School is the same school that, earlier this year, made headlines by barring an 18-year-old senior from publishing a newspaper column calling for greater acceptance of atheist students and decrying the interjection of religion into school activities, including Christian prayers at graduation ceremonies and football games.

 

TRANSPARENCY TUESDAY: “That’s personnel” is rarely the right response

Posted: 8th May 2012 by Frank LoMonte in Public Records, Transparency Tuesday
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How public employees are performing their jobs (or whether they’re showing up at all) would appear to be pretty essential information for journalists (or just inquisitive citizens) to figure out whether government agencies are, or aren’t, working effectively.

It’s long been the case, however, that personnel information is some of the toughest information to obtain by way of a public records request, in part because of the myth that personnel records are always confidential.

For instance, a North Carolina television reporter was told that, because of “personnel confidentiality,” she couldn’t be told why the City of Charlotte was still paying the city’s former top tourism official for at least two months after he left the job, or how long it would continue paying him into the future.

And a New York requester recently was denied access to questionnaire responses completed by candidates for a city planning board, which asked about their qualifications to serve. “That’s personnel information,” she was told. But the head of New York’s Committee on Open Government knew better: “The word ‘personnel’ doesn’t appear in the Freedom of Information Law,” Robert J. Freeman told The Daily Mail.

Indeed, the word “personnel” rarely appears in any state’s public-records act — despite what many government functionaries have been trained to believe.

State laws typically take one of two alternative approaches to personnel information:

  1. Personnel files are considered confidential, but with a laundry list of exceptions. For example, in North Carolina, the public is entitled to see such personnel information as contract terms, pay raises, dates of disciplinary actions, promotions or demotions, and the basis for firing.
  2. Personnel files are subject to a “balancing test” of public interest versus privacy interests, and material is confidential if disclosure would be an “unwarranted” invasion of personal privacy. That’s the approach in Arizona, for instance, and California as well.

Personnel records have enabled journalists to do some eye-popping stories about government waste and inefficiency.

Take this recent piece by the Newark Star-Ledger, whose reporters combed through the vacation and sick-leave records of high-ranking state employees to discover that some of them stood to cash in on six-figure jackpots (known in government circles as “boat payments”) for unused leave time. The roster included some members of the state legislature who, conveniently, had voted to “grandfather” themselves into New Jersey’s generous leave-banking system while capping it for more recent hires, according to the Star-Ledger.

And take the by-now-infamous story of New York City schoolteachers who — protected by tenure, but caught in a glacially slow review process for personnel actions — can spend as long as a decade drawing full pay for sitting parked in “reassignment centers” (pejoratively called “rubber rooms”) where they await word on the appeal of their firings.

Stories like these are possible only because all personnel records are not always confidential, and journalists who are told otherwise should be prepared to respond, sweetly but resolutely, “Can you show me where in the law it says that?”

Government agencies generally have not fared well when they’ve tried to conceal reports of internal misconduct investigations behind the “personnel curtain,” so such refusals should be vigorously challenged. In any state with a “privacy balancing test,” the public’s right to know of official misconduct — particularly if the employee is high-ranking or holds a sensitive job (e.g., police officer) — should override any claim of confidentiality. (And that is doubly true if the misbehavior is illegal, as there is no legitimate expectation of privacy in committing crimes.)

The myth surrounding the “secret personnel file” likely results from the delicacy with which those files — which do contain sensitive information such as Social Security numbers and employees’ medical conditions — are handled in the typical office. While it’s right to be cautious about the confidential portions of personnel files, quite a bit of what appears in a government employee’s file is manifestly the public’s business, including salary and job qualifications.

As with many public-records denials, the blanket “that’s personnel” denial should alert a good journalist to go into used-car haggling mode. Maybe you can’t get the whole file — you weren’t going to publish that medical leave request anyway — but with skillful bargaining (and knowledge of what the law doesn’t say), you should get what you need.

 

 

The College of Arts and… What? Licking libel — no butts about it.

Posted: 7th May 2012 by Frank LoMonte in Libel
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As a professor of comparative literature, Cornell University’s Walter Cohen undoubtedly has read some pretty racy texts in his time. Nevertheless, it had to be momentarily startling to read in Friday’s Cornell Daily Sun that he’d been named associate dean of the College of Arts and [VERY BAD WORD].

The newspaper’s red-faced explanation? An interloper attending an end-of-semester newsroom celebration must have tampered with the page just before it went to press.

It’s not nice to laugh at other journalists’ misfortunes — because, as editors at Suffolk University can attest – it can happen to anyone.

What the Daily Sun published is cringeworthy, to be sure, but was it libelous?

Happily, we can say that — thanks to a group of equally unfortunate editors at Virginia Tech’s Collegiate Times — there is actual judicial precedent that tells us the answer is, “No.”

With apologies for unearthing a buried memory and triggering a bout of journalistic PTSD for those who went through it… here’s the story.

Nearing the end of the spring semester in 1996 — do we sense a pattern here? — the Times published a routine, harmless news story about Virginia Tech’s success in placing students in a fellowship program. Accompanying the story was a routine, harmless “pull quote” from Sharon D. Yeagle, who worked in Tech’s Office of Student Affairs.

Only, the quote didn’t say, “Sharon Yeagle, who works in Student Affairs.”

It said, “Sharon Yeagle, Director of Butt Licking.”

How do you even write that correction?

Remarkably, the “directorship” was something of a stock phrase in the production room at the Times, which had — just a year earlier — given the “honor” to a different administrator. (With the same explanation — a place-holder that, under deadline pressure, never got replaced.) That administrator got a laugh, and an apology.

This one sued.

The case progressed all the way to the Virginia Supreme Court — where you just know seven justices were shaking their heads, “I spent three years pulling all-nighters at Yale Law School for this?”

In a 5-2 ruling, the court decided that the quote could not support a claim for libel, because no reasonable reader could interpret it as a literal accusation of deviant behavior or, more generally, of moral unfitness for employment:

In this case, the phrase ‘Director of Butt Licking’ is no more than ‘rhetorical hyperbole.’ The phrase is disgusting, offensive, and in extremely bad taste, but it cannot reasonably be understood as stating an actual fact about Yeagle’s job title or her conduct, or that she committed a crime of moral turpitude.

(In the Cornell situation, the argument for libel — and, just to be clear, nobody’s made such an accusation against the Daily Sun, which is acting appropriately apologetic — would be even weaker, since the VERY BAD WORD made the professor’s title into a nonsense phrase that can’t be interpreted as suggesting anything at all about his character.)

To help steer clear of libel, you can read this handy online guide. And consider holding the next newsroom party at Chuck E. Cheese’s.

 

 

TRANSPARENCY TUESDAY: Private campus, public records — SMU’s Daily Campus puts on a clinic on covering sexual assaults, athletics spending

Posted: 1st May 2012 by Frank LoMonte in Public Records, Transparency Tuesday
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If your campus newspaper broke the story that big-name athletic director, recruited and paid top dollar to build a major-conference powerhouse, had helped instead dig the athletic program into an $18.6 million yearly deficit, you’d think you had a pretty strong semester.

For the staff of The Daily Campus at Southern Methodist University, it might not even have been the biggest story of the week.

That distinction may belong to the investigative team responsible for “Sweeping Rape Under the Rug,” a painstakingly reported package that begins with a gasp-inducing statistic: “Over the past 25 years, more than 100 SMU students reported they were sexually assaulted. Yet, in only one case … were the suspects successfully prosecuted.”

This powerhouse pair of stories exemplifies the type of enterprise reporting that can be done at a private institution even without the benefit of the freedom-of-information requests that more easily open doors at public universities.

Reporters for The Daily Campus used a combination of secondary sources — like courthouse files — that (unlike the college’s own records) are open for public inspection, plus some internal SMU documents they were able to obtain through old-fashioned digging and source-building.

For the sexual assault story, reporters tallied up every federally mandated Clery Act log entry and campus safety alert to arrive at the statistic that 99 percent of student rape reports don’t end with a criminal conviction. Most go through the student conduct board, which can impose no greater penalty than expulsion. This, the paper noted, creates the double-standard that non-student rapists go to court, and student rapists go to the dean’s office.

In a written response, the college bristled at the description of its disciplinary system as “secretive,” relying on federal statutes that make student disciplinary records confidential. But FERPA, the federal privacy law, specifically allows schools to disclose when a disciplinary hearing has resulted in the equivalent of a “guilty verdict” to sexual assault — so it is not federal law that keeps SMU from being more forthcoming about how rapes are punished.

The athletic department story, not to be overshadowed, is one that deserves exploring on many campuses — and that can be explored even at private institutions, thanks to a federal disclosure law, the Equity in Athletics Disclosure Act (“EADA”), that requires public reporting of athletic department revenues and spending, even at private institutions.

The myth of athletics as a profit machine is exploded in reporter Mackenzie O’Hara’s story, which explains how, over the past seven years, SMU athletics have run $113 million in the red — a sum equal to “almost half of all tuition and fees paid by students in the 2011 to 2012 school year.”

Access did not always come easily. As described in a sidebar story, since the last time The Daily Campus reported on the athletic department’s budget woes, previously unsecured financial records accessible on the Faculty Senate website were hidden behind a login.

(A bonus writing tip: When refused access to records in which the public has legitimate curiosity, always keep an ear cocked and a pen poised for the snarky denial — in this case, the hypocrisy of a professor with access to SMU’s athletics budget who crows about how highly the college is rated in “transparency” and then adds, “But, I’m not going to give you the figures.” Look at how matter-of-factly O’Hara lays it out, with no embellishment necessary. When an official is being a jerk, understatement and a well-transcribed quote are your friends.)

For more reinforcement on how profitable athletics are not, check out the exhaustive research done by a different Daily Campus newspaper — this one at the University of Connecticut.

Using public records, UConn reporter Mac Cerullo found that many participants even in the most prestigious college football bowls actually lose money on the bowl trips — including each of the last three national championship winners. Even though the most lucrative bowls offer payouts up to $18 million, that isn’t always enough to cover the massive expense of transporting a team and its entourage cross-country and meeting the bowls’ quota of ticket purchases.

And the impact can fall even on non-participants. Some schools, including the Atlantic Coast Conference’s perennial BCS bowl representative, Virginia Tech, have turned to their conferences for bailouts when bowl revenues run short, meaning that other conference schools are helping subsidize the trip.

 

 

 

 

Campus preacher prevails in 1st Amendment challenge to Tenn. college’s permit rules

Posted: 28th April 2012 by Frank LoMonte in First Amendment, Free Speech Zones
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A public university can’t make a speaker wait 14 days for a permit to give a talk or distribute literature on campus sidewalks, or give notice of the topics he intends to address, a federal appeals court ruled this week.

John McGlone, an evangelical Christian preacher from Kentucky, brought suit against Tennessee Technical University after being told to leave campus property during two April 2009 visits because he had not complied with TTU’s speaking permit rules.

A federal district court threw out McGlone’s case. But on Monday, the Sixth Circuit U.S. Court of Appeals not only reinstated the case, but granted McGlone the remedy he wanted, declaring Tennessee Tech’s rules about speech on campus property to be unconstitutionally burdensome.

Because campus sidewalks are a “public forum” traditionally held open for expressive use, the Sixth Circuit decided that any regulation on the content of speech would be presumed unconstitutional, unless justified by a “significant” government interest. The university failed to come forward with any such justification.

TTU rules require speakers who are not university students or employees to apply at least 14 days in advance for a permit to use university property. The application form requires disclosing the name and purpose of the applicant’s organization, and whether the topics to be addressed are “political” or “religious.”

The court had little difficulty striking down all of these requirements as unnecessary to satisfy TTU’s legitimate interests. (In fact, it does not appear that Tennessee Tech put up much of a defense, acknowledging during oral argument in front of the three-judge panel that the 14-day advance notice requirement was unreasonably long.)

When speakers bring First Amendment claims against college administrators, the administrators typically respond by raising the defense of “qualified immunity,” which shields individual government employees against paying money damages unless their actions violated “clearly established” legal principles.

But in this case, the judges found the law to be so clear that no immunity defense could apply. It’s rare for courts to refuse government officials qualified immunity in First Amendment cases, as judges are protective of government employees who simply make good-faith mistakes — so the message to TTU is an especially stinging one.

The case is McGlone v. Bell, No. 10-6055.

 

The grizzly truth about copyright law and student photographs

Posted: 28th April 2012 by Frank LoMonte in Copyright
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If you have Internet access, if you know somebody with Internet access, if you’ve been standing near somebody with Internet access — then you’ve already seen, probably multiple times, the Viral Falling Bear Picture.

It’s a superb moment-captured shot, the work of a Colorado student photographer, Andy Duann, who (as he describes in this interview) hustled without even taking time to put on socks, to be in exactly the right spot when agents from the state Parks and Wildlife Department tranquilized the campus interloper and caught him in a net.

But getting a 200-pound-bear out of a tree may be simple compared with unscrambling the ownership issues that have arisen concerning the photo. As the shot began blowing up on the Web — “memes per hour” is the modern validation that you’ve created a classic — the Colorado Independent newspaper started getting calls from other media outlets that wanted a copy. (How refreshing — actually getting permission to use a photo instead of just stealing it!)

The Independent‘s faculty adviser, Gil Asakawa, acknowledges that the newspaper — believing it owned Duann’s photo — gave consent for other outlets to use it. At least one paper, the Denver Post, agreed to pay for a copy.

The Copyright Act provides that the “creator” of any tangible creative work — a photo certainly qualifies — owns that work from the moment of creation. So the starting assumption is, the photo belongs to Duann.

The Act provides two ways, and only two ways, in which the creator can lose ownership of his photo: (1) by signing over the rights in a written agreement, or (2) because the photo belongs to his employer as a “work made for hire.”

Initial news coverage of the situation does not mention any written agreement, so for the sake of this exercise, let’s assume there was none. Is it still possible that Duann’s photo belongs to the newspaper as a “work made for hire?”

Let’s look at how Duann and the adviser characterize his relationship with the paper, because that relationship will be decisive. Asakawa identifies Duann as being “on staff.” Duann describes being on staff as an informal relationship, like joining a “photo club.” Both agree that Duann was unpaid.

In the absence of a written contract, the Copyright Act says a work can be “for hire” — and therefore the property of the employer — only if it is “prepared by an employee within the scope of his or her employment.”

The Supreme Court told us what this means in a 1989 case, Community for Creative Nonviolence v. Reid. The Reid case involved ownership of a sculpture commissioned to draw attention to the plight of homeless people in Washington, D.C. When it was finished, both the sculptor and the advocacy group that contracted for his services claimed they owned it.

The Court decided that the sculpture did not fit the definition of a piece of work “prepared by an employee within the scope of his or her employment.” Therefore, although it was undisputed that the artist got fully paid, the nonprofit could not claim ownership as a “work made for hire.”

The justices looked at what it means to be an “employee” versus what it means to be an “independent contractor.” The most important factors — does the employer control the time and method in which the work is done? — pointed against “employee” status.

The sculptor worked in his own studio on his own schedule using his own tools, with the freedom to accept or reject additional assignments. His relationship with the Community for Creative Nonviolence did not look like “employment.” It looked like independent contract work.

As an independent contractor, the Court concluded, the artist owned the work unless he’d signed away ownership in writing.

News organizations that employee freelancers may think they have “ownership” of the freelancers’ work when the work is submitted for publication. Without a written agreement, they don’t. What they have is a “license” to use the work for a limited purpose; ownership remains with the creator. It’s like buying a ticket to a New York Knicks basketball game. You can’t yank up the chair and take it home. You have a “license” to occupy that seat for the duration of one game; ownership (and the chair) stays with Madison Square Garden.

Based on the Reid factors, it appears implausible that Duann’s photo could qualify as a “work made for hire.” He went to the bear-capture scene on his own, not on assignment from his employer. No financial or tax arrangements make Duann’s relationship with the Independent look like “employment.”

As the owner, Duann had the right to decide who, if anybody, got to reuse his photo and under what terms.

Everyone appears to have acted with good intentions — the student, to get his newspaper a terrific action shot free of charge, and the adviser, to get his student a credit-line in a bigger newspaper (and Asakawa told Poynter’s Andrew Beaujon that any money made from the sale would go to Duann). So this flap ought to get readily resolved short of the courthouse.

And it ought to remind all student publications to clarify the terms of employment and ownership, to avert just such disputes in the future. (One model for allocating rights between student creators and their publications appears here.)

As a postscript, it is entirely possible that — once Duann’s photo became an Internet sensation (so much that it froze the Independent‘s website) — other media organizations could then have republished the shot without permission or payment in a story about the phenomenon, under the doctrine of “fair use.”

If a photo itself (or video, song or any other copyright-protected work) becomes the subject of news coverage, then it is defensible under the Copyright Act to republish as much of the work as is necessary to illustrate the point. For instance, if you are writing a story about the (recently settled) copyright litigation between the Associated Press and the creator of the iconic “Obama HOPE” poster, you are well within the boundaries of fair use to reproduce the disputed works to illustrate the story, even without consent from the owners.

If other media organizations were writing about the bear being captured, then permission (from the rightful owner) was necessary. If they were writing about the overnight-sensation popularity of the photo, then permission probably was unnecessary.

Simple as getting your head out of a hunny jar, right?

 

Bridgewater State newspaper: Adviser threatened with removal over controversial stories

Posted: 26th April 2012 by Frank LoMonte in Adviser Termination, Advisers, College Censorship
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Editors at Bridgewater State University say the Massachusetts school’s president is seeking the ouster of newspaper adviser David Copeland because of controversial articles published in the April 12 edition of The Comment.

In an article posted Thursday on The Comment‘s website, along with an accompanying opinion column, the newspaper reports that President Dana Mohler-Faria is asking the college’s Board of Trustees — who meet Friday — to approve a policy disqualifying part-time faculty from advising student organizations — a change that would apply only to Copeland.

The April 12 issue of the paper contained two articles that drew college administrators’ ire.

A student-authored opinion piece questioned the need for a proposed $500 hike in student fees, arguing that the college’s budget should be going down because some 200 jobs have been left vacant as a result of a freeze. And a news story about a “Take Back the Night” sexual assault awareness rally quoted a student speaker, by name, detailing how she was raped by an acquaintance at a prior school — a story that critics of the newspaper have claimed was invasive of the student’s privacy, although she spoke to a crowd of about 200 attendees at a public event. The paper has resisted public demands to pull the rape-victim story down from its website.

The Student Press Law Center wrote to Mohler-Faria Thursday to emphasize that removing an adviser because of disagreement with students’ editorial decisions can be a violation of the First Amendment rights both of the adviser and of the students. The SPLC urged the president to drop any plan to remove Copeland and to instead lead a campuswide discussion about the role of the news media and the coverage of sensitive topics.

Full coverage of the results of the trustees meeting and reaction to it will be posted Friday at www.splc.org.

TRANSPARENCY TUESDAY: We shouldn’t need to explain this, but… the ADA isn’t an excuse to conceal public records

Posted: 24th April 2012 by Frank LoMonte in Newsgathering, Transparency Tuesday
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Colleges are nothing if not laboratories for experimentation with out-on-the-edge ideas. No thought is too wild, no notion too extreme, that it cannot be tested in the intellectual marketplace of the college campus.

That certainly is true of the alibis that college administrators give for refusing to honor requests for public records. The creativity of their excuses is completely uninhibited by the law, limited only by their ability to maintain a straight face.

We thought we’d heard every dog-ate-my-documents reason for obfuscating in the face of an open-records request, but the innovators at Oklahoma City Community College have opened up new frontiers in denial with their assertion to OCCC’s student newspaper, The Pioneer, that they are allowed to withhold otherwise-open records because of … the Americans with Disabilities Act (“ADA”).

Now, as a person with walking-around sense, you might think that a federal law requiring employers to make reasonable accommodations to the medical limitations of their employees, and to refrain from discriminating against those with limitations (whether actual or perceived), has nothing to do with the Oklahoma Open Records Act. Oh, but that is because you must be one of those color-inside-the-lines literalists who believes that laws are limited to mere words printed on a page.

If you look at the law more like a Jackson Pollock painting, and you squint at it through the eyes of a daringly innovative college administrator — or someone who’s been huffing a lot of paint thinner — then you’ll start to see that the law can mean whatever you say it means. As long as your students don’t have the money to take you to court.

Sigh. It shouldn’t be necessary even to shoot this one down, but…

The Americans with Disabilities Act contains one and only one reference to confidentiality. Section 12112(d)(3) of the Act provides that, if an employer requires a health exam as part of pre-employment screening, the employer must treat the exam results “as a confidential medical record” and share them only with statutorily authorized people (supervisors, first-aid personnel, investigators).

The ADA covers only information that is obtained by an entity such as OCCC in its capacity as an employer. It is a law about employer/employee relations, not a blanket “disability secrecy law.”

As in almost all states, Oklahoma law already provides an exemption allowing agencies to withhold records that would constitute a “clearly unwarranted invasion of personal privacy.” The same section of the Act also exempts “examination and selection material for employment” found in employee personnel files. Because of those exceptions, the ADA should never come into the discussion; any medical record covered by the ADA wouldn’t be a public document under Oklahoma law in the first place.

But of course, the reporters at The Pioneer understand this very well. They aren’t peeping Toms. They weren’t asking for records of people’s medical checkups, the results of which would almost never be legitimately newsworthy to print.

They were asking for the foundational types of public documents to which reporters at every city, county and college campus across the country routinely are given access, such as police department incident write-ups. And it was those types of requests that prompted the college to invoke — among numerous other dubiously applicable exceptions — the ADA.

(And remember: Even if confidential medical information appears in a public document, it is the agency’s duty to redact the confidential portions and produce the rest, if practically feasible. So even the presence of a medical record in an otherwise-public government file does not excuse production of the entire file.)

In the words of Oklahoma State professor Joey Senat, a leading authority on the state’s open records statute, “OCCC officials… are treating college journalists with the same disrespect that many high school administrators show for their students.” (There’s a recruiting slogan for you: “Come to OCCC, and relive the best days of high school all over again.”)

To be clear: Unless what you are asking to see is a government employee’s pre-employment medical exam — and if you are, ick — the ADA has exactly as much relevance to your public-records requests as the Smoot-Hawley Tariff Act.

 

Indiana journalism teacher settles First Amendment lawsuit involving newspaper, yearbook

Posted: 24th April 2012 by Brian Schraum in Adviser Termination, Courts, High School Student Media/Journalism
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An Indiana high school newspaper and yearbook adviser has settled her lawsuit against Greater Clark County Schools, though the terms are not yet known.

Kelly Short sued the public school corporation in January, claiming school officials retaliated against her for supporting the First Amendment rights of students. Following a year of tension over the student newspaper, Jeffersonville High School Principal James Sexton sent Short two written directives in summer 2011. Among the requirements were that the newspaper would no longer be considered a “forum for student expression,” and that administrators would begin reviewing it prior to publication. Sexton also insisted on specific requirements for the yearbook, including that it prominently display the school colors, categorize all school staff by category and distinguish between sports seasons, according to court documents.

Short was placed on suspension in November, three months after her attorney sent Sexton a letter declaring the new policies unconstitutional and demanding they be rescinded.

Short’s attorney, Dan Canon, said the settlement was “a fair resolution that was best for my client in the long run, as it allows her to move forward with her career without going through another year or two of litigation.” He declined to comment further.

A Greater Clark County Schools spokeswoman referred requests for comment to attorney Tom Wheeler. Wheeler could not be reached for comment after repeated attempts.

In court documents filed prior to the settlement, GCCS claimed Short was suspended, and later recommended for termination, for “numerous violations of Board policy and Ms. Short’s direct bullying of GCCS students.” In the documents, school officials claim an audit revealed a $41,000 debt owed to the yearbook publisher. School officials claimed Short tried to cover up the debt by entering into payment plans and contracts with the publisher without permission, and that “students also indicated to investigators that Ms. Short had bullied, harassed and intimated them into trying to pay this shortfall and that when they could not she berated and threatened them, all against School Board policy.”

Short denied those claims, with her attorney in court documents calling them “factual distortions.”

It was unclear whether Short would continue teaching at Jeffersonville High School, or whether Sexton’s directives would remain in effect.

A reporter for the Student Press Law Center filed a public records request seeking additional information about the settlement.

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