Citizens’ rights to know and journalists’ rights to report are threatened everyday, say the organizers of Sunshine Week, who planned the weeklong program to highlight freedom of information issues and emphasize the importance of open government. The Student Press Law Center is celebrating Sunshine Week with a series of reports on efforts by student journalists to access information and report in the sunshine.
Although Sunshine Week raises awareness about Freedom of Information Laws only once a year, student journalists are denied access year-round to information that they want to report. In 2003–the last year full data is available–the Student Press Law Center received 355 calls from students seeking advice on freedom of information issues. Five significant trends relating to student media access stand out.
Campus police records
Being denied access to campus police records is one of the most frequent obstacles college journalists report to the SPLC, according to Mike Hiestand, the SPLC’s legal consultant. Professional and student news media were denied access to campus police records in the early 1990s because officials claimed that the Family Educational Rights and Privacy Act (also known as the Buckley Amendment) did not allow schools to release this information. When reporters requested access to these records, Hiestand said, their requests were denied and they were told that these were student educational records, which are protected from disclosure under FERPA.
In 1990, a student newspaper editor sued Southwest Missouri State University after the school refused to give her campus security incident reports about an alleged rape, because the school claimed that providing this information would violate FERPA. A Missouri district court ruled that criminal investigation and incident reports are not education records under FERPA. The ruling–that students have the right to know about public safety and crime in their own campus communities–set a precedent for future access battles.
The use of FERPA as a strategy to deny access to police records was eliminated in 1992, when an amendment was passed to clarify that education records do not include records maintained by a law enforcement unit of the educational agency or institution in question.
The most significant step in fighting for open campus-crime records was the passage of the federal Clery Act in 1998. This act began as the Campus Security Act of 1990, which was a federal law intended to make more information available about criminal activity on America’s college campuses. By 1998, Congress amended the law to expand and strengthen its provisions and enforcement.
The Clery Act, initially enforced in 1999, requires any college or university that receives federal funding to provide three different types of records: an annual statistical report of campus crime; a daily campus crime log; and “timely reports” regarding crimes that present an ongoing threat to the campus community.
The Clery Act was a significant step in opening up records, Hiestand said, because it made an issue out of the lack of access to campus crime information. The Clery Act also “raised needed awareness about a problem that was effectively being swept under the rug by many schools,” he said.
If schools fail to release crime information under the Clery Act, the Department of Education can investigate and potentially fine the schools for noncompliance.
Campus court records
Students at many colleges and universities have not typically been allowed access to information about student judicial proceedings, even when criminal behavior was at issue. Generally such records are deemed by the U.S. Department of Education as covered by FERPA, and states tend to follow that standard, said Adam Goldstein, the SPLC New Media Legal Fellow.
However, there have been exceptions in which campus court records were opened, he said.
In 1993, a student sued the University of Georgia to stop the school from disclosing to the student newspaper the records of his campus disciplinary hearing about an on-campus arson incident, claiming that disclosing these records would have violated his right to privacy and that they were exempt from public inspection under FERPA. The Georgia Supreme Court found that disciplinary hearings and records involving criminal behavior did not constitute education records as defined by FERPA and were required to be open under the state open-records law.
Although FERPA does not require disclosure of disciplinary records, in 1998 Congress amended the law to explicitly allow schools to release the outcome of proceedings where a student is found responsible for behavior that would constitute a crime or violence or a non-forcible sex offense. At many public schools, state open-records laws will require the release of those records.
Many students do not realize they are entitled access to financial records of private schools, Hiestand said. Although private colleges and universities may not be covered by state open-meetings and open-records laws, they are not exempt from revealing financial information in their annual non-profit tax return, which is required by federal law to be open to the public. Information such as a school’s net assets, how it spends its money and its highest administrator’s salary is public information. Often student journalists are denied access to this IRS Form 990, the federal tax return that all private schools are required to file. But schools that fail to meet their public disclosure requirements can be subject to significant federal fines.
When boards of trustees and campus committees conduct searches for presidents and other top administrators, some schools keep the search process quiet until a candidate is selected. As long as the school in question is a public institution, however, documents and meetings related to the search may well be subject to freedom of information laws.
In 2002, a student newspaper and four commercial media organizations sued the University of Minnesota for denying access to documents from a search for the new university president. The board of regents suspended adherence to the open-meetings law during candidate interviews, believing the law did not apply because the statute did not expressly mention the university. A district court ruled in 2004 that the documents related to the presidential search must be released and some meetings must be open.
Information about leadership searches needs to be disclosed to those who request it, Hiestand said, to allow open discussion about the best candidate for the job.
Access has also been denied to those requesting collegiate athletic information at public and private schools. Most of the information requested is about money spent on athletic programs.
“College athletics in particular have become big business,” Hiestand said. “I think there is a lot of interest in knowing how much money is involved and how that money is being spent.”
People should be entitled to see where the money is coming from, how much the athletic program is spending and what it is spent on, Hiestand said, as long as the information is regarding the use of public funds.
Some of these funds are spent on coaches’ salaries. In 2004, a local newspaper in Kansas requested information from the University of Kansas for a story on the athletic director’s contract and how state funds were being spent to compensate him. The records were denied, and the university argued that because private funds contributed to his salary, the records should be kept private. A district court later ruled that because his contract was mostly paid with public funds, it was subject to public scrutiny.
Importance of access
Events such as Sunshine Week highlight the importance of open government, an idea that politicians, government officials and regular citizens have embraced. Students and school officials should do the same, Hiestand said.
“The best schools are those schools where administration is transparent and where there is accountability for the decisions that are being made,” Hiestand said.
“We’ve decided in this country that open government is the best government,” he added. “And I think that same principle flows right down to our schools.”
–By Diane Krauthamer
Visit the Sunshine Week Web site.
Read previous coverage
- Groups plan weeklong event to promote freedom of information News Flash, 2/14/2005