Montana court is another voice in the growing chorus: FERPA doesn’t mean what schools say it does

A well-known college employee suddenly disappears from campus under a cloud of misconduct rumors. When the news media starts asking questions, the college throws up a steel curtain of secrecy, claiming “student confidentiality.”

Journalists have become familiar with this bureaucratic dodge, and have come to regard cries of “FERPA” — the federal student privacy law — as skeptically as those of, “Wolf!”

Now, yet another state court — this time in Montana — has agreed with the news media that Family Educational Rights and Privacy Act (FERPA) does not override a state university’s duty to produce open records, if the records are primarily about the conduct of an employee and not primarily about students.

In a March 1 ruling, Bozeman Daily Chronicle v. Montana State University, Judge Holly B. Brown of Montana’s Eighteenth Judicial District Court ordered Montana State to turn over records concerning its investigation of Suichi Komiyama, a former MSU music professor and orchestra conductor.

The newspaper requested Montana State’s investigative report and related correspondence under the Montana Open Records Law. MSU responded that the documents were exempt under FERPA as student “education records.”

Komiyama, who resigned from Montana State on Sept. 30, has denied any wrongdoing. But the documents released under Brown’s order indicate that Montana State investigators concluded the professor made inappropriate sexual comments and advances toward several female students under his supervision, one of whom was still in high school.

In her ruling, Brown declined to classify the investigators’ documents as “student records,” noting that FERPA protects only records “of” a particular student, not records that incidentally mention students:

[T]he requested documents are directly related to the activities and behavior of Professor Komiyama and only tangentially related to the students involved. As a result, FERPA does not apply here.

Brown cited a string of prior rulings from across the country in which courts have reached the same interpretation of FERPA, most recently a 2009 Florida ruling in which Florida State University similarly tried — and failed — to withhold information about NCAA allegations against employees of its athletic department.

Having dispensed with FERPA, the court went on to analyze the MSU documents under Montana’s state constitution, which provides both for a right of public access to government documents and for a right of personal privacy. The judge concluded that, although FERPA did not require withholding any of the information, Montana privacy law did. She therefore ordered Montana State to produce the requested documents, with “minor redactions to protect the privacy of the involved students.”

This is a significant point, because it responds to the oft-repeated claim of school and college lawyers that, if FERPA is narrowly applied, confidential student information will become widespread public knowledge. This assertion is overblown.

As proved to be the case in Montana, state disclosure laws allow for limited redaction of information where (as the court concluded here) there is no public interest in disclosure outweighing the privacy interest of the innocent-bystander students. A surgical application of state open-records and privacy laws — not the meat axe of FERPA — is the right response when newsworthy school documents include non-essential student information that can be harmlessly removed.

The Bozeman Daily Chronicle case is just the latest in a growing series of rulings in which courts are applying a narrow, common-sense view of student privacy that comports with what FERPA’s authors intended.

Since the start of 2011, colleges in Arizona, North Carolina, Illinois and Florida all have lost cases brought by requesters whose documents were withheld on the grounds of FERPA confidentiality (several K-12 schools have as well).

While everyone agrees that core student records — those dealing with grades, attendance, aptitude tests, minor disciplinary scrapes and the like — should be protected against disclosure, colleges and schools have come to regard FERPA as a catch-all excuse to deny requests for just about any public document that they deem embarrassing or inconvenient to produce.

With the additional weight of the Bozeman decision — which Montana State has decided not to appeal — it is becoming increasingly difficult for colleges and schools to assert in good faith that anything other than students’ individual academic or disciplinary records are exempt from disclosure on FERPA grounds.