February 8, 2017
Contact: Frank D. LoMonte, SPLC Executive Director
director@splc.org or 202-785-5450
Six open-government organizations are throwing their support behind college journalists at the University of Central Florida fighting for access to student government spending records that UCF lawyers contend are confidential “education records” protected by federal privacy law.
In a brief filed Tuesday with Florida’s Fifth District Court of Appeal in Daytona Beach, the Student Press Law Center and five other advocacy groups argue that a circuit-court judge was correct in ordering disclosure of the documents sought by Knight News under the Florida public records law. The university contends that the documents — which show how much student government elected officials were reimbursed for travel and other business expenses — are exempt from disclosure under the Family Educational Rights and Privacy Act (“FERPA”), a much-abused statute often manipulated by government agencies to conceal unflattering information.
Citing a string of court rulings that have granted journalists access to government records over the objections of colleges and school districts, the brief states: “Court after court has recognized that FERPA is to be applied in a common-sense manner that permits disclosure even of identifiable records where no legitimate expectation of privacy exists. … Time after time, courts have afforded requesters access to public records referring to students over the unfounded FERPA objections of colleges and universities bent on using the privacy statute to frustrate public accountability.”
FERPA is a 1974 federal statute requiring educational institutions to enforce a policy and practice of keeping student education records confidential. UCF contends that releasing the names of student government officials who were repaid for travel and other business expenses would place the university in violation of FERPA – a statute that has never resulted in penalties against any educational institution in its 43 years of existence.
In August 2016, a Florida circuit judge rejected UCF’s position and ordered the records disclosed. The judge noted that expense-account reports are not handled in a manner consistent with confidential education records, and that student government officials waive some expectation of privacy by taking on positions of public responsibility. UCF is appealing that ruling.
Besides the SPLC, Tuesday’s friend-of-the-court brief was joined by the First Amendment Foundation, the Florida Press Association, the Florida Society of News Editors, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists Florida chapter. The brief was prepared and filed by media lawyer Mark R. Caramanica of the Tampa office of Thomas & LoCicero PL, which specializes in representing news-media clients.
The brief points out that students’ identities are routinely released to the public in documents created by student government associations, including ballots, roll-call vote tallies and minutes of meetings, and that expense reports should be treated no differently. The brief cites several examples of significant news articles made possible by access to expense reimbursement documents, including an award-winning series by the University of Memphis student newspaper raising questions about the use of public money to pay student elected officials’ tuition.
SPLC Executive Director Frank LoMonte said the university’s insistence on labeling these non-educational documents as confidential under FERPA exemplifies the misapplication of a narrow privacy act that has been distorted by secretive educational institutions to conceal mismanagement and wrongdoing.
“The Florida courts have taken a commonsense view of FERPA that recognizes not every scrap of paper mentioning a student can be a confidential education record. We’re confident that the court of appeals will likewise rein in UCF’s obsessive overuse of FERPA to conceal records that are neither educational nor confidential,” LoMonte said.
In the brief, the open-government organizations argue that FERPA can no longer be understood as a prohibition on granting requests for public records because of the Supreme Court’s 2012 ruling in a constitutional challenge to the Obamacare federal health program, NFIB v. Sebelius.
In that case, the Court held that federal laws compelling states to adopt federal priorities cannot be enforced by onerous financial sanctions giving states no choice – which is exactly how colleges have argued that FERPA operates, threatening colleges with the total forfeiture of all federal funding. The brief argues: “If honoring a public records request will put a university in violation of FERPA, and the result of being found in violation of FERPA is the ‘death penalty’ of disqualification from federal funding, then FERPA fails the compulsion standard of Sebelius.”
The case may be decided by the court on paper or oral arguments may be scheduled. A ruling typically takes several months to a year.
Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The SPLC is a donor-supported IRS 501(c)(3) nonprofit, providing free legal and educational resources online at www.splc.org.
-30-