Arizona judge narrows scope of FERPA “education records” in Tucson shooter Loughner’s case

An Arizona judge’s decision letting the media obtain internal college correspondence about Tucson shooter Jared Loughner’s record of erratic behavior adopts a sensibly limited view of the type of documents that can be concealed as “education records.”

Arizona Superior Court Judge Stephen C. Villarreal’s Tuesday ruling continues a trend among the courts of deciding in favor of disclosure when a request for legitimately newsworthy public records is met with a questionable claim of “student privacy.”

In granting The Arizona Republic‘s request for documents from Pima Community College, the judge rejected the college’s claim that a federal student privacy law, the Family Educational Rights and Privacy Act (FERPA), excused the college from complying with the state public-records act.

FERPA declares that students’ confidential “education records” are to be kept private, and colleges or schools that fail to implement and enforce confidentiality policies can be fined by the U.S. Department of Education, though none ever have been.

Carefully examining the wording of FERPA, Judge Villarreal said only documents “maintained” by an educational institution qualify as confidential student records. And “maintained” means more than just stored on an employee’s computer — the documents must actually be archived in some lasting and organized manner, such as placed in a student’s file with the Registrar’s Office:

Documents in an employee’s or another individual’s possession, such as email in an individual email account, but never seen or preserved by the educational institution are not maintained under FERPA and therefore not education records.

As Judge Villarreal noted, it would be especially strange to call an email an “education record” when it is subject to being deleted by the recipient at any time.

The judge’s ruling follows the Supreme Court’s view, expressed in a 2002 opinion involving the confidentiality of student-graded quiz papers, that the wording of the privacy law “suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database(.)”

In response to the order, which the college elected not to appeal, PCC immediately released some 250 emails, documenting the escalating concern about Loughner’s mental state that led the college to expel him in September 2010, about three months before the shooting rampage.

If we are not already at the point where it is an act of legal malpractice for an attorney to advise a college to defy a public-records request for anything other than academic-related records, then we are awfully close. The weight of legal authority that FERPA does not say what most school and college attorneys believe it says (or would like it to say) has become overwhelming. In just the past six months, court after court has rejected the view advanced by some in the Department of Education that any cocktail napkin scrawled with the name of a student qualifies as a FERPA education record:

  • Chicago Tribune v. University of Illinois Board of Trustees (N.D. Ill. March 7, 2011): Ruling that FERPA did not excuse the University of Illinois’ compliance with a request for records relating to a preferential college admissions program, including the identity of politicians who arranged for the fast-track admission of politically connected applicants.
  • News & Observer Publishing Co. v. Baddour (N.C. Super. Ct. April 19, 2011): Ruling that the records of calls made by University of North Carolina coaches on state-issued cell-phones, and the parking tickets issued to student athletes, were not confidential FERPA information.
  • Bracco v. Machen (Fla. Cir. Ct., 8th Cir. Jan. 10, 2011): Ruling that tapes and transcripts of University of Florida Student Senate meetings were not confidential FERPA records and were subject to disclosure under Florida law.

When FERPA is removed from the equation, then colleges (and judges) are free to exercise the good sense that FERPA impedes. Even without FERPA, judges have recognized a personal privacy exception to the Arizona Public Records Law, which in 99 out of 100 cases would enable a college to withhold emails containing sensitive information about a student’s mental health. Loughner is that 100th case.

When you murder six people in front of a parking lot full of witnesses, you forfeit whatever privacy interest you might otherwise have. Your life, unsurprisingly, becomes an open book. Is there anyone whose opinion of Jared Loughner is going to be lowered by knowing what his English professor thought about him? Is there any realistic possibility that Jared Loughner’s career prospects are going to be damaged by disclosure of his disciplinary write-ups?

Because Loughner has no legitimate privacy interest to protect, and because it is of significant public concern whether his college acted appropriately on the warning signs of his dangerousness, the balance in this unique situation tilts lopsidedly in favor of transparency.

That is a sensible weighing of privacy versus transparency that agencies should be free to make in the case of college records just as they are free to do with any other government records. If FERPA (as the DOE has insisted) leaves no room for judgment calls even when the results of a literal application produce absurd results, then FERPA is wrong — and the judges who are interpreting FERPA in the common-sense way that Congress intended are right.