Put yourself in the place of a school or college attorney. Your client, the institution, is trying to decide whether to fulfill or reject a journalist’s request for public records.
Honoring the request is going to be a nuisance, and the records contain some embarrassing information the school would rather not see on the evening news.
The records pretty clearly don’t contain any confidential student information — but the journalist can’t easily prove that. So you’re face with a choice: Hand over the documents, or claim “student privacy” and withhold them.
“What,” your client asks, “is the worst thing that could conceivably happen?”
“Well,” you respond, “if you deny the request, the worst possible thing that could happen is that — if the TV station can afford a lawyer — they’ll take you to court. If they’re willing to go through two years of delays, they might get a court order telling you you should’ve produced the records in the first place. Which, by that time, probably will be worthless anyway. There might be a few dollars in attorneys’ fees, but you won’t be personally responsible for any of that — we’ve got insurance.”
“And if we grant the request?”
“If you hand over the records, and it turns out they’re covered by FERPA, the federal privacy law, then the maximum penalty the Department of Education can possibly impose is taking away every dime of our federal education funding, which will force the school to immediately go out of business.”
No penalty versus the death penalty — close call, right?
Author Rob Silverblatt, a Georgetown University law student, has zeroed in on one of the foundational reasons that schools and colleges grossly over-classify public records as confidential under FERPA, the Family Educational Rights and Privacy Act.
In an article just published in the Georgetown Law Journal, Silverblatt blames the drastic imbalance between the penalty for violating FERPA by disclosing too much versus the penalty for violating state public-records law by producing too little.
[T]he status quo gives institutions strong incentives to unlawfully deny open records requests through reliance on FERPA. Indeed, it makes economic sense for many of these institutions to overcomply with FERPA and undercomply with open records laws.
Since most state open-records acts are toothless — the typical result is simply a court order to hand over the records that were wrongfully withheld — the law provides little motivation to cooperate voluntarily. Shrinking newsroom budgets have decreased the likelihood of being sued, as government agencies know full well.
The combined result is the equivalent of knowing there’s a 1 percent chance of being pulled over if you speed — and that, if you do, all you’ll get is a warning ticket. Silverblatt writes:
Overreliance on FERPA has come at a huge cost: it stymies investigative reporting and allows universities to operate largely in secret. … Abuses have proliferated because the current incentive structure strongly favors overcompliance with FERPA.
Silverblatt’s solution is an inventive one that deserves serious congressional consideration: Give the U.S. Department of Education, which has the sole authority to enforce FERPA, the power to fine schools that misapply FERPA to withhold public records “without any reasonable basis in the law.”
This legal standard wouldn’t penalize the institution that makes a close judgment call in a gray zone of uncertainty. It would apply only where the FERPA justification is transparently a fabrication (for instance, the University of Florida’s bizarre insistence that recordings of student government meetings were “confidential education records”).
After the recent debacle at Oklahoma State University, where college administrators — either maliciously or ignorantly — hid behind FERPA to withhold information from their own campus police about multiple victim accounts identifying a 22-year-old OSU senior as a sex offender, a congressional overhaul of FERPA is inevitable. Runaway false-positives have undermined the statute’s legitimacy and literally placed students at heightened risk of harm.
When administrators put privacy ahead of the physical safety of their students, the system simply is broken. Balancing the financial incentives is a start toward fixing it.