SUNSHINE WEEK: Courts weigh transparency, student privacy

In the past year, courts across the country have tried tointerpret the meaning of the federal student privacy law, known as FERPA.Several recent rulings suggest the Family Educational Rights and Privacy Actdoes not protect the vast array of information about students that someuniversities have claimed.

FERPA was passed by Congress in 1973, and allows theDepartment of Education to pull federal funding of schools that have a policyor practice of releasing “education records” with the permission of students.The exact scope of that law – and how it interacts with the state publicrecords laws used by journalists and citizens nationwide – has been debated foryears.

During Sunshine Week 2011, the following FERPA developmentsfrom the past year are worth noting.

Media awaits firsthearing in lawsuit over UNC-Chapel Hill athletic records

A group of news organizations sued the University of NorthCarolina at Chapel Hill in October for access to athletic records withheldunder FERPA.

The media outlets are seeking records of the university’sinternal investigation into possible misconduct surrounding the school’sfootball program. Specifically, the reporters asked for the unredactedtelephone records of the athletic director and head football coach, parkingtickets issued to 11 players, and the names of those who received athleticscholarships.

The NCAA is also conducting an investigation into whetherfootball players received improper benefits from sports agents, and possibleacademic violations involving a former tutor.

UNC denied the media’s records requests, arguing theinformation is confidential and protected from disclosure by FERPA.

The media groups, including the student-run Daily Tar Heel newspaper, argue theuniversity is violating the North Carolina Public Records Act.

An initial hearing in the case has not yet been scheduled.

Florida State’s NCAAappeal is not protected by FERPA

The news media prevailed last May in an open-records suitagainst Florida State University, as the state’s highest court decided not tohear the case.

The dispute stemmed from allegations that FSU employees violatedNCAA rules and gave preferential treatment to student athletes. The NCAA finedthe university, which appealed the decision.

When reporters from the Associated Press asked for a transcriptof the appeal hearing, the university cited FERPA in denying the request. InOctober 2009, Florida’s First District Court of Appeals held that the 695-page transcriptwas not protected from review.

“[T]heserecords pertain to allegations of misconduct by the University AthleticDepartment, and only tangentially relate to the students who benefitted fromthat misconduct,” the court held.

FSU thenmade the transcript public, though the NCAA appealed to the Florida SupremeCourt, saying its rules enforcement process depends on confidentiality. In May,the court declined to hear the case.

Federal judge: FERPA doesnot require schools to withholdrecords

A federal court in Illinois ruled this month that FERPA doesnot bar the release of student records under a state open records law.

The Chicago Tribunesued the University of Illinois, seeking access to records as part of aninvestigation into the university’s admissions practices. The paper sought thenames of certain applicants’ parents and their addresses, the names of anyonewho contacted the university on the applicants’ behalf and any documentsshowing a status change for those applications because of contact with auniversity employee.

The newspaper was investigating the possibility thatpreferential treatment was given to relatives of influential people who appliedto the university. Citing FERPA, officials denied a request for the recordsunder the Illinois Freedom of Information Act.

In a March 7 decision, Judge Joan Gottschall held that FERPAdid not protect the records from disclosure. The Illinois state law, like manyothers across the country, exempts records that are specifically prohibitedfrom disclosure by federal law. Gottschall held that while FERPA setsconditions on receiving federal funding, it does not specifically bar universitiesfrom releasing education records.

“FERPA does not impose any requirement on state officials,”the judge wrote. “The state has the option to choose whether or not to acceptFERPA’s conditions.”

The ruling leaves open the possibility that the records canstill be withheld under other exemptions to the Illinois public records law,including one for invasions of personal privacy.

The university has until April 5 to appeal.

UF Student Senaterecordings not shielded by FERPA

A state court judge in January ordered the release of videorecordings of University of Florida Student Senate meetings, finding them notprotected by FERPA.

Frank Bracco, a former UF student, requested copies of thetapes in an attempt to provide greater transparency of the student government.The university denied the recordings, citing FERPA, and Bracco filed suit.

Judge Victor Hulslander reviewed a DVD of the recordings andfound that “the proceedings relate generally to topics of importance tostudents and may identify specific students, but not as a focus of the record.”

Moreover, the judge found it inconsistent that the meetingsthemselves were open to the public, yet the recordings of the meetings wereconfidential.

Bracco said he has received the one record that was thesubject of the judge’s decision, and is still working to get access to others.He said he offered to consolidate several of his records requests.

“If they deny themagain or try to redact them again we might end up in mediation or court, worsecomes to worse,” Bracco said.

FERPA cases goes toIowa’s highest court

The Iowa Supreme Court will decide whether FERPA preventsthe release of University of Iowa records about alleged sexual assault oncampus.

The Iowa CityPress-Citizen newspaper requested records about reported sexual assaults oncampus beginning in October 2007. According to the newspaper, the request didnot specify a particular incident, though two former university footballplayers were charged in connection with an October 2007 sexual assault in auniversity dorm.

The university withheld some 3,000 pages of documents,according to the newspaper’s brief, arguing they are confidential under FERPA.A lower court judge ordered the release of some of the disputed documents,including some with student information redacted. The judge also awarded thenewspaper $30,500 in attorney fees.

Attorneys for the University of Iowa appealed, and the Iowahigh court heard arguments in the case Oct. 15.

The university argues it cannot release the records, even inredacted form, because the newspaper “knows the identity” of the studentsinvolved. It also argues that, in the event of a conflict, FERPA should trumpthe Iowa Open Records Act.

“The documents include information regarding the allegedvictim’s housing situation, handwritten notes concerning the details of theassault of the student… and how the athletic department handled the victim’scontinued participation in athletic department events,” according to theuniversity’s appeal. “A student’s response to a sexual assault is privateinformation, the dissemination of which FERPA is designed to prevent.”

Media organizations, including the Iowa NewspaperAssociation, the Associated Press and the Reporters Committee for Freedom ofthe Press, filed a friend-of-the-court brief in support of the Press-Citizen.

The court’s decision could come at any time.