NORTH DAKOTA — A university cannot hide behind federal privacylaws to refuse to honor an open-records request for information about thedisciplinary sanctions levied for violations of student conduct codes, NorthDakota’s Attorney General has ruled.
Attorney General Wayne Stenehjem issued his opinion after the GrandForks Herald was denied student-discipline records related to incidentsinvolving anti-Semitic graffiti in May 2008. The newspaper asked for documentswith identifying information removed, but the university cited the FamilyEducational Rights and Privacy Act (FERPA).
The university claimed because one student’s name had been released throughcourt documents, the newspaper would be able to identify the student even withthe redacted information.
“What we were interested in was what the university’s disciplinary action,outside of the court system, has been regardless of what the name of the studentwas,” said Mike Jacobs, the Herald’s editor and publisher. “We wanted tobe in a position to report how the university was disciplining students who, atleast arguably, had violated the law and certainly had violated the code ofstudent conduct.”
FERPA, also known as the Buckley Amendment, enables the U.S. Department ofEducation to penalize colleges and schools that fail to enforce policies makingindividual students’ “educational records” confidential. The Department of Education has interpreted FERPA not only to apply torecords containing students’ identities, but also those “easilytraceable” to individual students.
Stenehjem cited a recent Montana Supreme Court ruling that found “FERPAdoes not prohibit the release of redacted student disciplinary records.”
“To allege that FERPA prohibited the release of disciplinary records underany circumstance was inaccurate and a violation of the open records law,”Stenehjem said in his opinion.
Stenehjem acknowledged that the university could withhold “easilytraceable” documents pertaining to one student because the student’sname was widely publicized; the student was criminally charged in theanti-Semitic graffiti incident, but the charges were dropped. As to allother students, however, the attorney general ruled that FERPA could not beinvoked to refuse production of disciplinary records so long as the identifyinginformation was redacted.
The university released the requested, redacted documents to theHerald about four or five days after Stenehjem’s opinion, said ExecutiveAssociate Vice President for University Relations Peter Johnson. He said thedispute arose mostly over a “different interpretation” of privacy laws.
“Our general perspective is to try to be as open as possible,” Johnsonsaid.
Johnson said the university’s main concern was whether the Heraldwould be able to identify a student indirectly because of information regardingdisciplinary actions although the names were removed. But Jacobs said thenewspaper was not interested in the student’s names.
Jacobs said the newspaper’s attorney is reviewing the documents to makesure the university complied with the attorney general’s ruling.
“We are happy with the attorney general’s ruling,” Jacobs said. “Whether ornot the university has complied with the attorney general’s ruling I think isstill — we aren’t absolutely certain that that has happened.”