Thousands of documents, including many emails, concerning Aurora theater shooter James Holmes were released earlier this month by the University of Colorado, a month after a judge ruled some records could be released if they were public under Colorado law. The university said it redacted about 2,000 of the documents about Holmes because of FERPA and medical privacy reasons.
Source: Associated Press, James Holmes emails reveal brief romance, few friends (Dec. 6, 2012).
Former SPLC Executive Director Frank LoMonte: It’s depressing to have to say this – and doubly so, given the events of Dec. 14 at Newtown, Conn. – but we’ve been down this road before.
In 2011, The Arizona Republic tried to get public records from Pima Community College about its former student, Jared Loughner, after Loughner was arrested for the shopping-center shooting spree that killed a federal judge and left congresswoman Gabrielle Giffords gravely wounded.
Pima College, predictably, said everything it had on Loughner was confidential under FERPA.
A state-court judge didn’t see it that way.
Superior Court Judge Stephen C. Villarreal explained that FERPA covers only records that a college “maintains” about its students. An email from one professor to another, commenting that a particular student might be dangerous, is not a record “maintained” by the school. It doesn’t appear in the student’s permanent file, and it is subject to being deleted by the recipient at any time.
Judge Villarreal’s common-sense application of FERPA is consistent with the way the Department of Education has explained the statute’s purpose: If a record is a FERPA record, then (a) it must be produced when the student shows up and demands to inspect his FERPA records and (b) the student has the right to challenge the accuracy of the record, to insert corrective material into the record, and to have a hearing if the college declines to make the correction.
None of those descriptions applies – heck, none of them even makes sense – when talking about employee emails.
Now, fast-forward to Aurora, Colorado.
In its initial records production, the University of Colorado appears to have disclosed mostly documents created after the July 20 movie-theater shooting, such as correspondence about responding to journalists’ inquiries. As media reports have characterized the records, very few pertain to Holmes’ actual attendance at the university.
Undoubtedly, some of what the university has in its “James Holmes” file – his college application, grades, records of minor disciplinary incidents and the like – are “education records.”
But two thousand pages’ worth?
Let’s see, the University of Colorado has 30,000 students at any given time. If the “James Holmes file” is typical, then Colorado has 60 million pages of FERPA “education records” – just on its current students.
Sixty million pages is how much the Library of Congress adds to its collections every year. Sixty mission pages is the size of the entire collection in the Ronald Reagan Presidential Library.
In other words, nah. Colorado doesn’t have 2,000 pages of FERPA records about James Holmes. It has 2,000 pages of something – but relatively few of those pages are “education records."
Judge Villarreal had it right in the Arizona Republic case. If documents aren’t centrally "maintained,” they aren’t covered by FERPA.
Postscript: To the extent that Colorado insists some of the documents are covered by “health care privacy,” that exception – like FERPA – is much narrower than schools commonly claim.
If Holmes was consulting a health-care professional such as a university psychiatrist, then records of his treatment legitimately are protected by the federal Health Insurance Portability and Accountability Act (“HIPAA”). But the opinions of non-medical laypeople about Holmes’ mental state are not HIPAA records – nor, see above, are they legitimately within the scope of FERPA.
We rate this: a questionable use of FERPA