In America, the government belongs to the people. Freedom of information (or FOI) law is simply one means by which citizens, the owners, have given themselves the ability to keep tabs on what it is their government and governmental officials are doing. FOI law is based on the fundamental belief that a democratic people do not and should not give their government the right to decide what the people should or should not know. While most recognize the need for some secrecy in government (for example, battle plans), FOI laws, or “sunshine laws” as they are often called, recognize that most of what the government does should be subject to public review, carried out in the “sunshine” provided by open record and open meeting laws.
Too often, however, student journalists fail to take advantage of the extraordinary power of freedom of information law. The university president refuses to answer a student reporter’s question about her annual salary. School board members lock a reporter out of a budget meeting to discuss controversial school closings. The campus police chief locks up all records about an alleged sexual assault that took place in front of the school library. A principal refuses to answer questions about a rumor that he was arrested for drunken driving. Is that the end of the story? Too often, the answer seems to be yes. For student journalists who know the basics of freedom of information law, however, “no comments” and locked doors are not dead-ends — just temporary obstacles that can very often be overcome.
For the purposes of most student journalist, FOI law falls into five roughly defined categories:
- the federal Freedom of Information Act,
- state open record laws,
- the federal open meetings law,
- state open meetings laws and
- miscellaneous FOI provisions.
The federal laws are typically used to obtain access to the meetings of federal governmental bodies or records in the possession or control of a federal agency; state laws are used to obtain access to the meetings or records of state or local government agencies. The miscellaneous laws can apply to either state, local or federal government agencies — some even apply to non-governmental bodies, such as a private school.
What do freedom of information laws say?
Generally, FOI laws say that all records generated or meetings conducted by a public body are open to the public unless they are specifically exempted by law. Even when a specific exemption does exist, most laws still leave disclosure up to the individual government official. In other words, an official usually can disclose exempt records or grant access to exempt meetings, but she is not required to. While private bodies (such as private schools) are generally not covered by FOI laws, some laws ensure compliance by private entities by threatening to withhold government funding if certain information is not disclosed.
When requesting access under federal law, the exemptions are uniform across the country. Under state law, however, the exemptions can vary. For example, while Connecticut’s open records law makes arrest records available to the public, Delaware’s law apparently exempts that same information.
Under most FOI laws, a public record or meeting is presumed to be open. This is important because it means that where a public official decides to deny access, it is up to the official to legally justify his decision. Further, if a requester feels she was incorrectly denied access by a public official, most FOI laws allow the decision to appealed.
No matter what type of information or meeting to which you are trying to gain access, every newsroom should have a copy of their state’s open meetings and records law and the federal Freedom of Information Act available for consultation should questions arise. If your newsroom does not, your state press association, a local newspaper or attorney or the Student Press Law Center can assist you in obtaining copies.
How do freedom of information laws work?
Fortunately, access to government meetings and records is often granted on an informal basis by public officials who recognize the importance of open government. Therefore, before waving your copy of the law in front of a government official and demanding compliance, you will often find officials more receptive to your request by simply asking for their assistance. When the informal approach is unsuccessful, however, an FOI law may need to be invoked.
Open Meeting Laws
Using FOI law is simple. For meetings of governmental bodies, just show up. If the meeting is small or if your presence is questioned, you should identify yourself as a reporter and politely explain your interest in attending the meeting. Remember that you are not looking for a confrontation; you are looking to gather news for your readers. If you are told that the meeting is closed, ask why. This is also a good time to professionally explain to the meeting’s chair why you think you should be entitled to attend, being sure to cite the relevant open meetings law. If the officials still tell you the meeting is closed, ask that your objection and their response be read into the minutes and then leave. Upon leaving, be sure to record the names and titles of everyone you talked to and carefully note what was said.
If after leaving you still feel that you were wrongly denied access, you may wish to consider following the course of appeals prescribed by your specific open meetings law. If you need help at this stage, you may wish to contact an attorney experienced in FOI law or call the Student Press Law Center.
Open Record Laws
To request records, most state laws say that all you have to do is go to the person responsible for keeping the documents you’re looking for and ask for them. To formally request records from a federal agency or to request records from a state agency when you think they might not act on an oral request, a written request is required. Again, the process is fairly straightforward. An automated FOI records request letter , containing the basic information you should include in your request, is available on the SPLC Web site to assist you.
In writing your letter, be sure to cite the relevant FOI law and note the specifics relating to how much time the law gives an agency to respond to your request and any penalties associated with non-compliance. Also, make sure that you “reasonably describe” the material that you want. If you want police incident reports relating to an assault committed in front of Memorial Library on June 4, 2010, say so. A letter that merely requests access to “all crime information” will probably only delay your getting access to the information you want. You do not need to know an exact document number or title, but your request should be specific enough so that a public employee familiar with the subject area can locate the records with a reasonable amount of effort. And again, you will find that courtesy and professionalism are rewarded.
As with meetings, if you feel your request for access to records has been wrongly denied, you should consult your open records law to determine the procedure for appealing the decision. Usually, you will be required to write a formal letter of appeal to a higher authority. Some states, however, do allow for immediate review by a judge. And again, if you have questions, this might be where should consider seeking professional guidance.
Other sources of FOI law
While open meeting and open record laws are the primary tools of most journalists when trying to obtain information from and about their government, they are not the only source of law available. Scattered throughout various state and federal laws are pockets of FOI law that, once you know where to find them and how to use them, can provide a journalist with other valuable information about how the government or your school conducts its business. For example, as part of a large body of law regulating federal financial aid for students, Congress also included a small section requiring that schools provide statistical information regarding campus crime. And buried deep within the voluminous federal tax code is a provision that requires private schools and other non-profit organizations to provide, upon request, some of the nitty-gritty information about where their money comes from and where it goes. The details of these and other FOI laws are provided below.
Remember – FOI law is your friend
It is truly unfortunate how many student journalists either do not know about or have not taken the time to learn how to use freedom of information law. Do not be one of them. FOI law can be an invaluable ally in fulfilling one’s duty as a journalist to inform readers about the performance of their government and in obtaining other interesting and useful information. For student journalists and all those interested in the nuts and bolts of government, a working knowledge of FOI law is essential. In addition to this basic introduction, the Student Press Law Center can recommend other sources that will provide additional information on how to get the most out of FOI law. Remember, FOI law can be a potent tool in a journalist’s arsenal — but first you have to use it. Below are some public record statutes, with information about what records are available.
FOI Tool: Federal Freedom of Information Act (FOIA)
[5 U.S.C. Sec. 552]
Type of Information Available: All records created, possessed or controlled by a federal agency or maintained for such an agency by an entity under government contract, unless those records fall within one of nine categories of exempt information that agencies are permitted (but not required) to withhold. The exemptions are: (1) national security, (2) internal agency rules, (3) information specifically exempted by other federal laws already on the books — the so-called “catch-all” exemption, (4) trade secrets, (5) internal agency memoranda, (6) personal privacy, (7) law enforcement records, (8) bank reports, (9) oil and gas well data. The exemptions, however, are not always as broad as the exemption headings might suggest. For example, the law enforcement exemption can be used only where an agency demonstrates that release of a document could reasonably be expected to jeopardize an ongoing civil or criminal investigation, deprive a person of a right to a fair trial, or cause harm to persons who assist law enforcement officials. Unfortunately, interpreting the federal FOIA has become increasingly complex and questions or record requests that seem fairly straightforward often are not. To clear through the brush on the national level, the Reporters Committee for Freedom of the Press publishes an excellent resource, the Federal Open Government Guide, which is available free on the RCFP Web site. The National Freedom of Information Center Web site also contains much useful information.
Who the Law Applies to: Every “agency,” “department,” “regulatory commission,” “government-controlled corporation” and “other establishment” in the executive branch of the federal government. The FOIA does not apply to Congress, the federal courts, private corporations or federally funded state agencies. However, documents generated by these bodies and filed with a federal government agency become subject to the Act unless they fall within one of the exemptions. Also, records maintained for a covered agency by an entity under government contract are also subject to disclosure.
How to Use it: To save yourself some time and trouble, you may want to first try an informal verbal request to obtain the documents you are seeking. However, agencies frequently will require that requests be made in writing. Also, to preserve your rights under the Act, a formal request must be in writing. Filing a formal request is usually not difficult. You need only “reasonably describe” the records you want in a letter, which you then submit to the FOIA officer at the federal agency you believe has custody of those records (for example, the FBI or the Environmental Protection Agency). (You can use the Reporters Committee for Freedom of the Press automated federal freedom of information letter generator. If you are unsure which federal agency has the records you want, you can send the same request to several agencies. Likewise, if a federal agency has numerous branches or field offices and you believe the records might be held by one of them, send a copy of your request to that location as well. Mark the outside of the envelope “Freedom of Information Act Request,” and send it registered mail, return receipt requested. The statute requires that agencies grant or deny your request within 20 working days unless an “unusual circumstance” specifically described in the statute occurs.
Penalties for Non-compliance: If your request is wholly or partially denied, the FOIA gives you the right to appeal. Your appeal can be a brief letter to the agency administrator asking that he review your request and explaining why you think the denial was improper. (You can find a sample appeal letter on the RCFP Web site.) If your appeal is denied you may file a FOIA lawsuit in the nearest federal district court. It is probably wise — although not necessary — to have legal help in filing your complaint. The Act provides for the payment of attorneys fees and court costs if you “substantially prevail” in your lawsuit. The Act also provides that an “arbitrary” or “capricious” denial of properly requested information by an agency employee can subject that person to written reprimands, fines and/or removal.
FOI Tool:State Open Record Laws
Type of Information Available: Varies by state. However, the general idea is that all “public records” are available unless they fall under a specific exemption listed by the state law. For specific information on the law in your state, there is no better resource than the Open Government Guide, an exceptional 50-state compendium published for journalists by the Reporters Committee for Freedom of the Press and available free on their Web site.
Who the Law Applies to: Varies by state. Again, however, the general idea is that all “state agencies” or state “public officials” must provide access to their official records when requested to do so.
How to Use it: Many state laws — unlike the federal Act — expressly provide that a simple verbal request to the person who maintains the records is sufficient. In these cases, the state official must provide reasonable and prompt access to the requester during normal business hours. If your verbal request is denied, it is important that you note the name, title and response of any official you deal with. In states where verbal requests are not recognized — and any time such a request has been denied — a formal written request should be submitted. (You can use the SPLC’s automated state freedom of information letter generator.) As with a federal freedom of information request, your letter should reasonably describe the material you are seeking and be sent to the person(s) or agency(s) responsible for holding that information. Note that you need not direct the request to the very individual — often a secretary or clerk — who has physical possession of the document you want; the request should go to the department head, the agency’s FOI coordinator, or to a responsible agency official who has supervisory authority over the record-keeper.
Penalties for Noncompliance: Penalties vary by state. Almost all states provide for an eventual court order in which improperly concealed records are required to be opened. Some states require that a requester first appeal a denial through an established administrative process before going to court. About a third of the states have established a public-access agency or ombudsman who works out of the state attorney general’s office or a state organized freedom of information council or commission. Some ombudsman offices write legal opinions responding to public questions; a few are available to mediate freedom of information law disputes. Such offices can provide a welcome alternative to court if an open records request is denied. Many states allow a prevailing requester to collect money for attorney fees and court costs. Additionally, many states also allow for the imposition of monetary fines (and some even prescribe jail sentences) against a state agency or officer who improperly denies an open records request.
FOI Tool:Federal Government in the Sunshine Act(Federal Open Meetings Law) [5 U.S.C. Sec. 552b]
Type of Information Available: This freedom of information tool acts as a standing invitation for journalists and other members of the public to attend the business meetings of most federal government boards, commissions and agencies. It also requires that agencies covered by the law give at least one week’s public notice of a meeting’s topic, time and place. All meetings — including budget deliberations — must be open unless the agency demonstrates that the discussion would fall under one of ten exemptions. The first nine of these exemptions parallel the federal FOIA exemptions, discussed above. The tenth exemption provides for closure when an agency is involved in arbitration or adjudication of a case.
Who the Law Applies to: The statute lists about 50 federal boards, commissions and agencies that must comply with the federal open meetings law. Like FOIA, the Sunshine Act does not apply to Congress, the federal courts, private corporations or state agencies.
How to Use It: Simply show up at the time and place posted on the public notice. If there is a topic that you are particularly interested in, most agencies will put your name on a mailing or e-mail list to receive public notices of upcoming meetings. If you hear that a meeting is closed or if you are asked to leave once you have arrived to cover a meeting, ask that the meeting’s chair provide you with a reason (preferably in writing) for the closure. If you believe that the meeting is being closed improperly, ask that your objection to the closure be read into the minutes of the meeting, being sure to cite to the federal open meetings law. Record the names and responses of all government officials you speak with — and then leave. Short of going to court, it is often helpful to submit a written letter of objection to both the meeting’s chair and, if applicable, the chair’s supervisor or other individual in a position to exert pressure on the chair to comply with the open meeting law’s requirements. In the letter, you should briefly explain how you were denied access to the meeting and why you believe that action was wrong. Give the recipient a reasonable deadline for addressing your complaint and let him know that, if necessary, you are prepared to legally appeal the decision of the chair.
Penalties for Noncompliance: The Sunshine Act allows a court to dissolve an improperly noticed or closed meeting. Where such an injunction is issued, future improper notices or closings could result in a court finding the agency in contempt. This is why, if you are barred from a meeting you believe was closed unlawfully, you should contact a lawyer immediately; an attorney may even be able to obtain a telephonic order from a judge to halt an illegally closed meeting in progress.
FOI Tool:State Open Meeting Laws
Type of Information Available: Varies by state. Generally, a state’s open meetings law guarantees the right of the public to attend meetings of a public body in which a quorum exists and during which official business will be discussed. The laws usually require agencies to give advance notice of the time, place and agenda of all meetings. The laws also usually require agencies to keep minutes of all meetings, even those that can be legally closed to the public. Every state allows agencies to discuss some matters in closed session. The kinds of meetings that can be closed vary by state, but most laws permit the following discussions to be in secret: personnel matters, litigation matters, negotiations and collective bargaining sessions, and discussions regarding the acquisition of real estate. The single best resource for journalists wanting to find specific information on the applicability and mechanics of their state open meetings law is the Reporters Committee for Freedom of the Press 50-state compendium, Open Government Guide, available free on their Web site.
Who the Law Applies to: Varies by state. Most states — but not all — require a meeting be open only when a sufficient number of the body’s members are present to constitute a quorum. Chance social or informal gatherings of agency officials generally are not covered. However, officials cannot hide behind the pretext of a social or other “non-official” gathering (such as a “retreat” or “workshop”) if the agency is meeting to discuss public issues and make decisions. Non-governmental groups (for example, a university foundation) may fall under an open meetings law where they are supported in whole or in part by public funds, are created by a government body, use public facilities or perform traditionally governmental functions. Where student governments at a public school are responsible for allocating student activity fees or other public money — or where they have been delegated decision making authority by the school — a state’s sunshine law will often cover them. Unlike the federal open meetings law, some state laws also include certain legislative and judicial bodies, in addition to executive branch agencies, as among those required to conduct their business in public.
How to Use It: See discussion under the Federal Government in the Sunshine Act, above. Generally, the same rules and strategies would apply when using state open meetings laws.
Penalties for Noncompliance: In some states, action taken at an improperly closed meeting can be declared null and void, requiring the agency to take the action again in an open meeting. In other states, government officials may be liable for criminal or civil fines. Also, attorney fees are often available to those who successfully contest a closed meeting.
FOI Tool:Crime Awareness and Campus Security Act of 1990[20 U.S.C. Sec. 1092(f)]
Type of Information Available: The federal Clery Act requires colleges to gather and report three different types of campus crime information:
Annual Campus Security Report (including campus crime statistics) Colleges and universities are required to publish and distribute by October 1 of each year an annual security report containing: (1) campus security policies and procedures, including security and access to campus dorms and other buildings; (2) the law enforcement authority status of security personnel, including their working relationship with state and local police agencies; (3) a description of crime prevention and drug and alcohol abuse programs available to the campus community; (4) a listing of any policies that encourage accurate and prompt reporting of crime to the appropriate police agencies; (5) a description of programs designed to inform students and employees about campus security and encourage them to be responsible for their own security; (6) campus policies regarding law enforcement relating to drug and alcohol use; (7) a policy statement about how local police monitor criminal activity at off-campus, institution-recognized student organizations; (8) notification of where individuals may obtain information about registered sex offenders, and (9) the school’s campus crime statistics for the previous three years. Statistics must be released for the following crimes and violations: murder, rape or other sex offense (both forcible and non-forcible), robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, arson and certain hate crimes. Where an arrest or disciplinary referral is made, a school must also report statistics concerning: liquor law violations, drug law violations and weapons possession. In 2008, President Bush signed legislation adding four new criminal offenses to the hate crimes list: intimidation; larceny-theft; destruction, damage or vandalism of property; and simple assault. Statistics must be compiled for incidents that occur “on campus, in or on a noncampus building or property and on public property — within the same reasonably contiguous geographic area of an institution.” All occurrences that were reported to campus security authorities (which, by federal regulation, includes “any official of the institution that has significant responsibility for student and campus activities…[but who] do not have significant counseling responsibilities”) and local police agencies must be included in the report. The school must distinguish criminal offenses that occur on campus, in or on an off-campus building or property, on public property, and in student dorms.
Daily Campus Police/Security LogUnder the Clery Act, any covered institution with a police or security department must “make, keep and maintain a daily log, written in a form that can be easily understood, recording all crimes reported” to that department. Unlike the statistical report, all crimes reported to the campus police or security department must be included in the daily log. There is no set list of crimes. Also, off-campus crimes that occur “within the patrol jurisdiction” of the campus security office are reportable. The information recorded must include the nature, date, time, general location of each crime and the disposition of the complaint, if such information is known. The crimes must be included on the daily public log within two days of the initial report, except where disclosure is prohibited by law or would jeopardize the confidentiality of the victim. The department must also update a log entry within two days after receiving new information about an incident in the log. However, if the release of such information clearly would jeopardize an ongoing criminal investigation or an individual’s safety, cause a suspect to flee or lead to the destruction of evidence, the information may be withheld until the release of the information is no longer likely to lead to such consequences.
Timely ReportsIn addition to the annual statistical report and daily log, the Clery Act imposes two directives that require campus officials to disseminate information about ongoing threats to students. First, the act requires that schools make “timely reports to the campus community on crimes [from statistical crime list above] considered to be a threat to other students and employees … .”The statute does not define “timely reports” and the Department of Education has stated that the need for such reports much be decided on a case-by-case basis. In the wake of recent campus shootings, an additional provision was added to the law in August 2008 requiring campuses to publish policies that include procedures to “immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation” that threatens the health or safety of individuals on campus, “unless issuing a notification will compromise efforts to contain the emergency.” This new provision supplements, but does not replace, the “timely” reporting requirement.
In August 2009, the U.S. Department of Education proposed new rules and regulations that would modify the Clery Act. They included adding additional crimes which must be reported in hate crime statistics, requiring a statement of policy from institutions regarding their emergency response and evacuation procedures, clarifying the difference between a timely warning requirement and the emergency notification policy, adding a definition of “on-campus student housing facility,” requiring an institution to include its missing student notification policy and procedures in its annual security report, specifying what the missing student notification policy must include, and requiring institutions that maintain an on-campus student housing facility to publish and distribute an annual fire safety report that includes a description of the student housing facility’s fire safety system.
Who the Law Applies to: All institutions — public and private — receiving federal financial assistance (for example, federal work-study funding or grants and National Direct Student Loans).
How to Use It: The mechanics for obtaining the information depend on what you are looking for. Schools generally can comply with the reporting requirements by publishing the information on the Internet, provided that any individuals required or entitled to receive the information are notified of its online availability and given the exact Internet address where the reports can found. Paper copies must also be made available on request.
Annual Campus Security ReportThe law requires that schools “prepare, publish and distribute” the annual security report to all current students and employees and to any school applicant who requests the information. The actual reports compiled by schools have taken many forms, from a no-frills mailing to a full-color, tabloid-sized brochure complete with poster-size maps and safety tips. Other schools are reportedly including therequired information in existing campus publications, like school catalogues or student handbooks or via the Internet. Additionally, the Chronicle of Higher Education and the U.S. Department of Education compile comprehensive lists of crime statistics that are publicly available.
Daily Campus Police/Security LogWhile it is not necessary for schools to affirmatively distribute their daily crime log, logs for the most recent 60 days must be physically available on request for public inspection during the police or security department’s normal business hours. Archived logs older than 60 days must be made available within two days of a request being made. The Department of Education has specified “crime logs must be kept for three years following the publication of the last annual security report to which they apply” (in effect, seven years).
Timely ReportsUnfortunately — though debate continues on the issue — to date, neither the law nor the regulations provided much guidance as to what will or will not qualify as a timely report. However, the statute does state that a report must “be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences.” It is clear, therefore, that schools have an obligation to notify the campus community of a threat quickly and actively. It certainly can be argued that alerting campus news media would be a fundamental part of any reasonable notification process. Furthermore, as institutions are now required to create and disseminate a policy of “immediate” notification of emergencies and dangerous situations, a reporter could assert that any delay is a violation of that policy.
Penalties for Noncompliance: Schools that do not comply with the Clery Act — which would include providing inaccurate information — risk being fined up to $27,500 for each violation and could lose their eligibility for federal aid. The Department of Education has been charged with monitoring schools’ compliance with the Clery Act and has taken action against a number of schools in recent years, including a record fine of $350,000 assessed against Eastern Michigan University in 2007. Individuals who believe their school is not accurately providing the required information should file a written complaint with their Regional Office of the Department of Education. (It does not appear that the Act gives an individual who is denied crime information the right to go to court or appeal the denial administratively, although that right may exist under state open-records law.) When bringing a complaint to the DOE, provide a summary of your situation and any evidence of the school’s noncompliance. Follow your letter with a telephone call confirming that your complaint was received and asking if any further information is required. Carefully document all contact with the Department and ask to be notified of the agency’s findings. Contact the Student Press Law Center and your members of Congress if you have any problems with the Department of Education’s response. More information about the Clery Act is available in the Student Press Law Center’s publication, The Student Media Guide to the Clery Act.
FOI Tool:State Campus Police Log Laws
Type of Information Available: These laws are the state versions of the open campus crime log provision in the federal Clery Act, discussed above, but in some cases require more detailed or different information than the federal law. In general, these laws require — in unambiguous language — that campus police forces maintain and provide public access to their records. While most state open record laws would provide much of the same information at public schools, these laws head off any attempt by school officials to argue that they are exempt. Currently, California, Georgia, Kentucky, Massachusetts, Pennsylvania, Tennessee, Virginia and West Virginia have such laws on the books. Oklahoma passed a law that, while not explicitly requiring schools to open their crime logs, does classify both public and private school police forces as “public agencies,” which could indicate they must comply with Oklahoma’s Open Records Law.
Who the Law Applies to: Varies by state. One of the key features of the laws passed so far is that they apply to both public and private schools. In California, schools with less than 1,000 students are exempt.
How to Use It: Varies by state. In Kentucky, Massachusetts, Pennsylvania, Tennessee and Virginia, a person need only show up at the campus police office during regular business hours and request access to the police log. Kentucky’s law also requires that the information be available online. In West Virginia, school officials must make crime information available within 10 days of the crime being reported. In California, school officials must make crime information available to an individual within two business days of that person’s request.
Penalties for Noncompliance: The Kentucky, Massachusetts, Pennsylvania, Tennessee, Virginia and West Virginia laws do not include provisions that penalize school officials for noncompliance. Those seeking to enforce the provisions in these states are presumably limited to obtaining a court injunction ordering disclosure. The California law allows an individual to sue an institution for up to $1,000 if it fails to provide the required information.
FOI Tool:State Crime Statistics Laws
Type of Information Available: These laws are the state versions of the federal Clery Act, discussed above, which require schools to compile and release statistical information regarding campus crime. The advantage to some of these laws is that they may require schools to report more information than required by the federal law (for example, more or different categories of crime, crimes from a broader geographic area, or more detailed descriptions of criminal incidents). As of 2009, at least sixteen states (California, Connecticut, Delaware, Florida, Kentucky, Louisiana, Massachusetts, Nevada, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington and Wisconsin) had some form of campus crime statistics statutes on the books.
Who the Law Applies to: Varies by state. Some states clearly limit the reporting requirements to public schools; other laws either explicitly include private schools or contain language that would appear to do so (for example, “each institution of higher education”).
How to Use It: Varies by state. Some laws require schools to actively distribute the information to students, faculty, etc. Other laws require only that the information be made available on request.
Penalties for Noncompliance: Varies by state. Some states have made failure to comply with the law a crime, punishable by fine. Other states, unfortunately, have put little “bite” in their respective laws. Students in these states would be limited to obtaining a court order compelling a school to release the records.
FOI Tool:Campus Sexual Assault Victims’ Bill of Rights
[20 U.S.C. Sec. 1092(f)(7)(a)]
Type of Information Available: This freedom of information tool — a companion to the federal Clery Act, discussed above — may provide student journalists with a look at what goes on behind the closed doors of an on-campus disciplinary body in cases involving sexual assault. In such cases, this law requires that a school provide information regarding the outcome of an on-campus disciplinary action to both the accused and accuser. Furthermore, the annual campus crime report required by the Clery Act (discussed above) must include a statement outlining the school’s programs to prevent and respond to sexual assaults. The statement must address the availability of educational programs intended to heighten awareness of rape and acquaintance rape, what students should do if a sex offense occurs, the on-campus disciplinary procedures involved and the possible penalties for committing a sex offense.
Who the Law Applies to: All institutions receiving federal financial assistance (for example, federal work-study or grants and National Direct Student Loans), which will include many private institutions.
How to Use It: While the law does not require that the information be released directly to the public, journalists have the opportunity to contact an accused or accuser, if their identities are known, and ask if they will agree to have the information reported. In the past, journalists often found that their hands were tied for lack of information, even when an apparent victim of sexual assault wanted her story told. Further, because the law also requires schools to inform students of their option to report the incident to the local, off-campus police, it is likely that more information regarding sexual assault on campus may be available through normal police reporting channels.
Penalties for Noncompliance: Schools that do not comply risk losing their eligibility for federal aid. Violations should be reported to their Regional Office of the U.S. Department of Education.
FOI Tool:Campus Sex Crimes Prevention Act
[42 U.S.C. Sec. 14071j; 20 U.S.C. Sec. 1092(f)(1)(I); 20 U.S.C. Sec. 1232g(b)(7)(A)]
Type of Information Available: This law, which amended the federal Violent Crime Control and Law Enforcement Act of 1994, calls for the tracking of convicted, registered sex offenders who are students at colleges and universities or working on campus. The legislation, which became effective in October 2002, requires registered sex offenders to provide notice to higher education institutions when they are enrolled or working on campus. Such notice must be reported to local law enforcement agencies. Additionally, the law partially amends the federal Clery Act and requires institutions of higher education to issue a statement (which can be accomplished by inserting it into the school’s annual crime report) advising the campus community where residents can obtain information about sex offenders on campus. The law also amends the Family Educational Rights and Privacy Act (FERPA) to make clear that the statute does not prohibit release of data on registered sex offenders.
Who the Law Applies to: All institutions — public or private — receiving federal financial assistance (for example, federal work-study or grants and National Direct Student Loans).
How to Use It: Most schools probably will make information about campus sex offenders available in their campus police or security department office or post it online. Your annual campus security report — which the school must give to each student — will have more information about how to obtain records.
Penalties for Noncompliance: Schools that do not comply risk losing their eligibility for federal aid.
FOI Tool: Student Right-to-Know Act (graduation rates, student debt)
[20 U.S.C. Sec. 1092(a)-(d). see also 34 CFR 668.41 and 668.45]
Type of Information Available: This federal law was passed in large part to combat the growing default rate on government-insured financial aid. It requires that colleges submit a report to the Secretary of Education that includes: (1) the identity of and procedures used by an institution’s accrediting or licensing body; (2) academic standards adopted by a school; (3) student completion and/or graduation rates; (4) student financial aid deferment policies; (5) average indebtedness of students receiving federal aid, including average monthly payments; (6) the cost of attending the institution, including tuition, estimated room and board, fees, books, and estimated transportation costs; (7) the availability of financial aid and the methods of award and disbursal; and (8) students’ responsibilities upon receiving financial aid.
Who the Law Applies to: All institutions — public and private — participating in federal financial aid programs (such as federal work-study and grants and National Direct Student Loans).
How to Use It: Colleges are required to give the information to students and prospective students, their parents, high school coaches and high school counselors upon request. Also, the national reports are made available by the Department of Education, which must compile various reports showing how schools rank nationally.
Penalties for Noncompliance: Schools that do not comply risk losing their eligibility for federal aid.
FOI Tool: Student Right-to-Know Act (student athletes)
[20 U.S.C. Sec. 1092(e). See also 34 CFR 668.41 and 668.48]
Type of Information Available: This section of the federal Student Right-to-Know Act was passed to remedy the perceived abuse surrounding athletic scholarships and other financial aid. It requires that colleges annually report the following information to the Secretary of Education: (1) the number of students receiving athletically related aid, broken down by race and sex, who participate in basketball, football, baseball, cross country/track, and all other sports combined; (2) total number of students at the school, broken down by race and sex; (3) completion or graduation rate of students receiving athletic aid, again broken down by race, sex and sport; (4) completion or graduation rates of all students, broken down by race and sex; (5) average completion or graduation rates for the four most recent classes of those receiving athletically related financial aid, broken down by race, sex and sport; and (6) average completion or graduation rate for the four most recent classes of all students, broken down by race and sex.
Who the Law Applies to: All institutions — public and private — participating in federal financial aid programs (such as federal work-study and grants and National Direct Student Loans).
How to Use It: The school must provide enrolled students, prospective student athletes, parents, guidance counselors and coaches with an annual report by July 1 of each year. The report must include the one-year period ending August 31 of the preceding year. If a school is a member of an athletic conference or association that already requires substantially similar reporting, that data may be substituted for the report to the Department of Education and should be readily available from the athletic conference or association. (For example, the National Collegiate Athletic Association requires that member schools make graduation rate data available to the public and compile that data into publicly available reports.) Also, once this information is submitted to the Department of Education, the Department must compile various reports showing how schools rank nationally. In addition, the National Postsecondary Education Cooperative published a 2009 guidebook, Information Required to Be Disclosed Under the Higher Education Act of 1965: Suggestions for Dissemination, detailing the information required to be disclosed under the Higher Education Act of 1965, which includes the various disclosure provisions of the Student Right-to-Know Act and Clery Act. The guidebook may help your newsgathering activity by informing you about the information educators must disclose and allowing you to quickly respond to administration officials who wrongly claim that certain pieces of information cannot be disclosed.
Penalties for Noncompliance: Colleges that do not comply risk losing their eligibility for federal aid.
FOI Tool: Equity in Athletics Disclosure Act of 1994
(College Athletic Program Budgets; Male v. Female Athletic Program Statistics and Expenditures) [20 U.S.C. Sec. 1092(g); see also 34 C.F.R. 668.41 and 668.47; 60 Fed. Reg. 61,424 (Nov. 29, 1995), 64 Fed. Reg. 43,581 (Aug. 10, 1999), and 64 Fed. Reg. 59,060 (Nov. 1, 1999)]
Type of Information Available: This federal law requires schools to compile an annual report detailing revenues and expenditures that can be attributed to their athletic programs. “Revenues” specifically include gate receipts, payments for broadcast rights, concessions and advertising. Reportable expenses include, for example, grants-in-aid, salaries, travel, equipment and supplies. The school must also break down the ratio of male to female aid, spending on men’s and women’s teams, the average salaries paid to head and assistant coaches of men’s teams and the average salaries paid to head and assistant coaches of women’s teams. The report will also include the total revenues and expenditures for football, men’s basketball, women’s basketball, all other men’s sports combined, and all other women’s sports combined. Additionally, the information must detail the number of male and female full-time undergraduates at the school, the number of participants on each varsity team, a gender breakdown of head and assistant coaches of varsity teams and the amount spent on recruiting for men’s and women’s teams.
Who the Law Applies to: All co-ed postsecondary schools that participate in a federal financial aid program (such as federal work-study and grants and National Direct Student Loans), have an intercollegiate athletic program and offer athletically related financial aid.
How to Use It: The regulations indicate that the college must provide the report promptly to anyone who requests it, so presumably, all you should have to do is go to your school’s business office or athletic department and ask for a copy. (Copies should be free to students, prospective students and coaches. The general public may be charged a fee to cover copying expenses.) Schools can comply with the law by posting their report on the Internet, provided they give reasonable notice of its existence and clear directions (including an accurate URL address) for locating it online. If they refuse access, put your request in writing and notify your Regional Office of the U.S. Department of Education.
Penalties for Noncompliance: Schools that do not comply risk losing their eligibility for federal aid.
FOI Tool:Disclosure of Foreign Gifts[20 U.S.C. Sec. 1011f]
Type of Information Available: This federal law requires colleges or universities to disclose information to the Department of Education about their relationship with certain “foreign sources,” which includes foreign governments, businesses and individuals — or agents of any of the above. Where required, the disclosure report will indicate how much money came from contracts or gifts attributable to a particular country, a description of any conditions or restrictions placed on the gift or contract and, if applicable, the date on which the foreign source assumed ownership or control of the institution and any changes in program or structure resulting from the change in ownership or control.
Who the Law Applies to: Any public or private postsecondary institution. The law requires a disclosure report from: (1) any institution owned or controlled by a foreign source or (2) any institution that receives a gift or enters into a contract with a foreign source, the value of which is $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year. Some states also have their own versions of the law. Connecticut, Missouri, New York, Pennsylvania and Texas, for example, have similar provisions, with some lowering the threshold amount for reporting to less than $250,000.
How to Use It: The law states that, once submitted, all disclosure reports become public record and are available for inspection and copying at the Department of Education during normal business hours. Alternatively, you may submit a written request to the Department.
Penalties for Noncompliance: The federal government can sue schools that fail to comply. If a violation is found, the school will be required to reimburse the government for all court costs, legal fees and all other costs associated with the government’s investigation and enforcement action.
FOI Tool:Federal Non-Profit Tax Returns (Internal Revenue Service Form 990)
[26 U.S.C. Secs. 6104, 6652(c), 6685; see also 26 CFR 301.6104(d)-1 through 301.6104(d)-3]
Type of Information Available: Private school student journalists, in particular, should know how to use this powerful freedom of information tool. The IRS Form 990 and the supporting schedules that go with it disclose a wealth of information about the inner workings of tax exempt bodies — information you probably cannot obtain elsewhere. The following examples of information reported on the Form 990 should pique your interest: (1) the amount of money the organization has taken in each year (including grants), with a breakdown indicating the general sources and amounts of that money; (2) a comprehensive listing of where the money was spent, how much was spent and for what; (3) a detailed balance sheet indicating both the assets and liabilities of the organization at the end of each fiscal year; (4) information on the sale or purchase of the organization’s investments (such as stock portfolios, bonds, trusts and endowment funds) and how they have fared each year; (5) the identities and salaries of the top organization employees, consultants and professional service providers making more than $50,000 a year and (6) any legal fees paid by the organization.
Who the Law Applies to: Tax-exempt organizations, such as private schools, college foundations (public and private schools), charities and non-profit corporations.
How to Use It: Changes to the law — and the Internet — have made obtaining a Form 990 easier than ever. By law, copies of a tax-exempt organization’s Form 990 and supporting documents can be obtained through the Internal Revenue Service, inspected on the institution’s premises or, increasingly, acquired online. Because of the time involved in obtaining a copy from the IRS (up to three months), it is suggested you first go to the organization itself or use the Internet. Federal law requires that the organization make both its application for recognition of tax-exempt status and its annual information returns (Form 990 and supporting documents) for at least the last three years available to the public upon request either in person or by mail.
To make an in-person request, contact the organization’s business office during regular business hours. Ask to inspect the form or ask to be directed to the office where the form is kept. The organization must allow you to inspect the form and take notes. Unless the form can be easily obtained on the Internet, copies must be provided on request, although a reasonable photocopying fee may apply. Except in unusual circumstances, the law requires that you be allowed to inspect and obtain a copy of an organization’s Form 900 on the same day you make your request. If you encounter reluctance, you should submit a written request, citing the law (including the penalties for noncompliance, discussed below) and stating that you will go to the IRS if denied access. You may also wish to send a copy of your request to the organization’s attorney.
If your request is solely by mail (or e-mail), the organization has 30 days to mail you a copy of the form.
If you are searching online, a helpful Web site to consult is www.guidestar.org. After a free, quick registration process, GuideStar allows users to view copies of many schools’ (or any other tax-exempt organization, such as a university foundation’s) 990 forms and other information. Though GuideStar is not an official government site, it provides a way to obtain this information faster than through traditional channels.
Finally, to obtain a copy of the form from the IRS, contact the IRS Service Center that serves your state.
Penalties for Noncompliance: If you are refused access to all or part of the form by an organization, keep a careful written record of who turned you down and when and how it occurred. Organizations can be fined $20 per day (up to $10,000) for noncompliance. Moreover, where the denial is “willful,” the individual responsible may also be fined $5,000 for each document he or she refused to provide. Official complaints — along with supporting documentation — should be sent to the district director of the IRS Key District Office in which the organization is located.
FOI Tool:Family Educational Rights and Privacy Act (FERPA)
(Also known as the “Buckley Amendment”) [20 U.S.C. Sec. 1232g]
Type of Information Available: Most student journalists have encountered FERPA only as a roadblock to access. But this federal law has two sides. First, FERPA penalizes schools that release a student’s “education records” to outsiders without that student’s permission (or, if the student is a minor living at home, the student’s parents) by withholding federal funds from educational institutions that routinely release such information. The other side of the law, however, requires that schools release a student’s own “education records” to the student upon request. Further, students have a right to ask that the school correct or delete any information contained in their records that the student believes to be inaccurate, misleading or an invasion of privacy. For example, despite a vigorous protest from schools, FERPA was used by some students to gain access to their own admissions files, providing them with information on the selection criteria used by schools in granting or denying offers of admission. (Note, however, that if a student voluntarily waives his right to see a record — such as a recommendation letter written by a faculty member — FERPA will not apply.)
Still, for the purposes of student media, FERPA will more often be an impediment to access and newsgathering. In some cases — particularly those involving “core” academic records such as transcripts, test scores and teacher recommendations — there is probably little room for student media to argue. Shielding such information from indiscriminate public access is clearly what lawmakers intended. On the other hand, school officials have often used the law’s broad and imprecise definition of “education records” as an excuse of convenience to shield any record they would rather not disclose, even those that have little or no connection to academics, such as campus police and disciplinary records or internal university investigations of faculty or employee misconduct.
Courts have provided only limited — and often conflicting — guidance. For example, in its first look at the “education records” definition, the U.S. Supreme Court in its 2002 Owasso decision simply concluded that FERPA indicates that education records are “institutional records kept by a single central custodian, such as a registrar” that usually will be kept in a filing cabinet, database or other permanent spot for safe-keeping. On the precise reach of FERPA, other courts have reached conflicting results. For example, courts in various states have reached different conclusions as to whether campus court records involving non-academic, criminal conduct are “education records” covered by FERPA. The U.S. Department of Education, the agency charged with enforcing FERPA, has been less than helpful, often adopting overly expansive, “school-friendly” interpretations of “education records,” that are later rejected by courts. Until Congress or the U.S. Supreme Court steps in to clarify the law in more than a piecemeal fashion, the debate — and friction — between journalists and schools will no doubt continue.
It is important to note, however, two important limitations on FERPA that school officials frequently overlook. First, FERPA applies only to information in an “education record” that personally identifies an individual student. For example, anonymous statistical reports that track district-wide student test scores or college admissions data are generally not subject to FERPA and can be released. Moreover, if personally identifiable information can be removed or redacted from a record to allow for its release, most state open records laws require school officials to do so. Note, however, that in December 2008, the U.S. Department of Education issued new regulations that broaden the definition of “personally identifiable information” and — in limited circumstances — could allow schools to withhold records even when identifying information is redacted. “Personally identifiable information” now includes “[o]ther information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty” and “[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.” Therefore, under the DOE’s expansive interpretation, a school could withhold even redacted records from the public if the disclosure of the redacted records proves the existence of the records and could reasonably be used to identify the specific student referred to in the records. For example, these new rules could prevent a school from confirming whether it had disciplined any student for bringing a gun onto campus, because the identity of the gun-wielding student probably would be known to people within the school community. The validity of the DOE’s 2008 regulations has yet to be tested in court.
Second, FERPA limits release of information only by school officials. Absent a formal employer/employee relationship (for example, where a student holds down a part-time job in a university office), students are not agents of the school and are not subject to FERPA’s limitations. Therefore, while the law regulates how school officials are permitted to release student education records, FERPA does not similarly regulate students working on student-edited media. Where a student journalists, for example, lawfully obtain accurate and newsworthy information about another student,