Florida judge: FERPA does not apply to admission records held by prosecutor

Educational records in the possession of prosecutors during a criminal investigation are not confidential and can be released to the public, a Florida judge has ruled.

The ruling, by Judge Marc L. Lubet of Florida’s Ninth Judicial Circuit, came in a case involving records at Florida A&M University that had been used in a criminal investigation into hazing at the university.

The university had originally turned over the records, which included students’ undergraduate admission applications, after the records were subpoenaed by prosecutors in December 2011.

Journalists then requested the records from the state attorney’s office, which released more than 2,300 pages of documents, according to the ruling. But hundreds of pages of education records were redacted in their entirety.

When the media requested the records again, the student defendants asked the judge for an order barring their release.

The students and FAMU argued the records were protected from disclosure by the Family Educational Rights and Privacy Act.

Lubet, however, ruled that FERPA does not apply to the state attorney, and Florida’s public records law does not have its own exemption for education records.

“[T]he Office of the State Attorney is not bound by FERPA, a federal law that applies to educational agencies and institutions,” Lubet wrote.

For the same reason, Lubet refused to order personally identifiable information redacted from the documents under FERPA.

Lubet said the court could only instruct the state attorney’s office to redact information “to which an exemption validly applies,” like Social Security numbers and driver’s license numbers.

“Therefore, as FERPA’s limitations on [re]disclosure are inapplicable, and as Florida’s Public Records Act does not provide an exemption for education records, the Court finds the State Attorney’s Office must comply with the media’s public records request and release the educational records,” Lubet wrote.

Lubet noted that the documents contain sensitive material, writing that he “can only hope that the media treats these records with the respect contemplated by FERPA.”

Frank LoMonte, executive director of the Student Press Law Center, said the ruling shows that the university turning over the records because of the subpoena isn’t a breach of FERPA.

“The court order immunizes the university,” LoMonte said.

He said the ruling is useful for journalists who may be pursuing records in a criminal investigation involving a school.

The ruling makes it clear that journalists can obtain the records without running afoul FERPA by going to a third party, LoMonte said.

“[The records] cease to be confidential records when they pass into the hands of law enforcement or a prosecutor,” he said.

Sharon Saunders, FAMU spokeswoman, said the university had no comment.