When a government agency gets a request for public records that contains confidential information about private citizens, most state laws enable the agency to engage in a common-sense balancing of interests. If the public’s interest in disclosure outweighs any embarrassment to those identified in the records, then the agency can and should disclose.
For decades, the federal student privacy law — FERPA — has been widely applied (and perhaps misapplied) to override that common-sense balancing process. Even where the disclosure of student information would be entirely harmless, and the public’s interest in disclosure is compelling, the U.S. Department of Education interprets FERPA to penalize making it accessible.
But a federal judge’s March 7 ruling may prevent some of the more irrational abuses of federal privacy law and enable the press and public to more effectively monitor what is going on inside schools and colleges.
U.S. District Judge Joan Gottschall ruled that FERPA does not override a public university’s obligation to honor a public-records request that is otherwise proper under state law.
The judge’s ruling came in response to a suit by the Chicago Tribune, which sought access to information relating to a preferential VIP admissions policy at the University of Illinois (“Clout Goes to College“). The Tribune’s investigation resulted in toppling the university’s president, B. Joseph White, and prompted the chair of UI’s board of trustees to resign.
Tribune reporters sought records enabling them to trace which bigwigs’ families benefited from special admissions preferences, including the names of parents of those on UI’s golden-ticket list, as well as the names of any third parties who lobbied for the admission of VIP candidates.
The university denied the Tribune’s request on the basis of Illinois’ Freedom of Information Act, which allows agencies to withhold information “specifically prohibited from disclosure by federal or State law.”
But Judge Gottschall ruled that FERPA is not a “specific prohibition” against disclosure. Rather, it raises the possibility that the U.S. Department of Education may withdraw federal funding if it finds that a college has no effective confidentiality policy and refuses to adopt one. That is different from expressly prohibiting disclosure.
This ruling — assuming it is not successfully appealed — presents a real opportunity to harmonize the discord between pro-disclosure state statutes and the anti-disclosure FERPA regime. Properly viewed, FERPA is about maintaining and enforcing policies against the routine disclosure of confidential student information. It would be a FERPA violation, for instance, to let professors post students’ grades on the office door according to Social Security number.
But FERPA need not penalize an agency’s involuntary disclosure, such as when compelled to disclose by a state public-records law. Thus, it is wholly possible for an agency to have an effective non-disclosure policy, but to disclose in individual cases where state law requires it.
Judge Gottschall’s ruling decided only the matter of whether FERPA is an absolute bar to disclosure. She did not decide the ultimate question — which may require further state-court litigation — of whether some other exemption in Illinois’ FOI law might entitle the university to withhold the records. Like the federal government and most states, Illinois provides a discretionary exception enabling state agencies to deny requests for public information if disclosure “would constitute a clearly unwarranted invasion of personal privacy.”
Journalists who regularly cover schools and colleges should keep a copy of the district court’s ruling in Chicago Tribune Co. v. University of Illinois Board of Trustees handy, and be prepared to argue back if newsworthy public-records requests are denied on the basis of specious “confidentiality” claims that appear calculated to protect school wrongdoers rather than students.