TRANSPARENCY TUESDAY: Are state salaries really a state secret?

If you’re curious how much Southern Utah University pays its president ($281,513 in base salary) or head basketball coach ($206,628), that’s long been accessible with a few keystrokes. But if you want to know what the college pays the usher who takes tickets at the Utah Shakespeare Festival, that’s been a closely guarded secret. Until now.

Thanks to the persistence of Salt Lake Tribune reporter Donald Meyers — and if they build a Mount Rushmore of open government, his face will someday be on it — SUU has conceded that the salaries of student employees are a matter of public record under Utah’s Government Records Access and Management Act. Those salaries have now been added to the publicly accessible database of all SUU employees.

Stop me if you’ve heard this one, but…

Until challenged, the university took the position that records of the salaries paid to student employees were confidential under the Family Educational Rights and Privacy Act (“FERPA”), the federal student privacy statute.

And Southern Utah was hardly alone. Although the salaries of government employees are routinely released to the public under state and federal freedom-of-information laws, many colleges have insisted that FERPA makes the salaries of student workers none of the public’s business.

For example, during a 2011 labor dispute at Southern Illinois University-Carbondale, union members were surprised to learn that they could no longer look up the salaries of grad assistants in the directories that, for years, had been shelved in the campus library for public inspection. The school’s explanation? FERPA made them do it.

There may be marginal public interest in knowing what a student makes to sell ice cream at football games or wipe tables in the cafeteria. But when students are being hired to teach courses in place of professors, there is a real public interest in knowing whether students who pay nearly $23,000 a year (the average tuition at a public institution) are being taught by minimum-wagers.

The U.S. Department of Education, which is charged by Congress with enforcing FERPA, has not spoken directly to the confidentiality of student salaries. But in an August 2000 interpretation letter, the Department indicated that the University of Oregon would be in violation of FERPA if it gave labor-union organizers access to a database about grad assistants that included not just their pay but their Social Security numbers, academic majors and other non-salary information.

Here is what Department of Ed regulations say about the records of student employees: “Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records(.)” (Classifying a document as an “education record” means that, with limited exceptions, it cannot be released without the student’s consent.)

So, a personnel file pertaining to a work-study employee will be legitimately confidential under FERPA, and can be withheld even if personnel files would otherwise be public records under the applicable state law.

However, the Department also has made clear — and when it comes to FERPA, the DOE is expert at speaking “clearly” in ways that contradict each other — that FERPA privacy applies only to “records” and not to “information.” So for purposes of FERPA privacy, what matters is the nature of the record and not the nature of its contents. If it’s not an “education record,” then what’s in it is not confidential.

When the “record” is a database of all college employee salaries, that doesn’t seem to meet the Supreme Court’s understanding of FERPA as a law about protecting the files belonging to individual students. When you ask at the registrar’s office to see your “FERPA records,” you don’t get back a two-foot-thick salary directory.

What’s more, as a practical matter, colleges have been giving out that information for years — including SIU-Carbondale, which gave it out readily until 2011 — without incurring any federal penalties. If the FERPA axe was going to fall for disclosing student employee salaries, it would have surely fallen by now.

Informing the public about how much money is paid to government employees are close to the very heart of why open-records laws exist. If a coach puts his under-qualified nephew on the payroll as a graduate assistant, that’s information the public is entitled to know — and there is little, if any, reasonable expectation of privacy in collecting a taxpayer-funded paycheck.