North Dakota bill to protect university research from FOIA requests includes Title IX exemption

NORTH DAKOTA—A North Dakota bill originally intended to protect trade secrets and university research will become a problem for reporters trying to access university Title IX investigation documents, if passed in its current form.

Senate Bill 2295, would shield ongoing research and Title IX investigation documents from state open records laws.

Lisa Feldner, chief of staff of the North Dakota University System, said the first portion closes a loophole that leaves research information conducted in partnership with a private enterprise vulnerable to open records requests.

“If they’re doing research on new plant varieties for Monsanto or someone like that, and they come up with some neat stuff but they’re not ready to publish yet, someone can come in and do an open records request and steal their research,” Feldner said.

The second part, the Title IX exemption, poses more problems.

Steve Andrist, executive director of the North Dakota Newspaper Association, said while the NDNA initially supported the bill when it only included the research protections, he hadn’t been aware the Title IX amendment existed until recently.

“Once it got into committee, that’s when we realized that somehow or another this Title IX part of it got thrown into the bill, and we didn’t know it,” Andrist said.

Title IX, the federal statute that forbids gender discrimination in education, is the law under which universities investigate cases of sexual harassment or assault. Given the questions over how reliably universities report sexual assault statistics, Title IX records are one way for journalists to acquire evidence regarding sexual violence.

Feldner said excluding Title IX investigation documents from the public record is uniquely necessary for North Dakota, a state where the smallest regional university has an undergraduate enrollment of just more than 1,000 students and the community colleges go even smaller.

“We have really small colleges… we have one under 500 students. So when you have a Title IX investigation, even if you, by FERPA, redact the person’s name, everybody’s going to know who it is,” Feldner said. “It doesn’t take much imagination to put two and two together.

Andrist pushed back on that premise, saying Title IX investigations should be a part of the public record and that the ability of the state to redact personal information is a safeguard against the disclosure of private details.

“The constituency of the students, the parents of the students, and anybody else, the faculty, anybody else on that campus, not only has a right to know but deserves to know what’s going on on their campus and whether or not there’s a question of safety … we shouldn’t be eliminating an entire class of information to protect the privacy of students whose privacy are protected anyway,” Andrist said.

The bill has made it all the way to the House, where it’ll be voted on in committee. Andrist says that’s the time when the NDNA plans on making their stand, and he’s confident they will be able to make a dent in the legislation.

“We’re poised to fight it tooth and nail when it passes over to the House side,” Andrist said.

According to the North Dakota Legislature’s website, the bill has been referred to the House Education Committee and will not be debated until March.

SPLC staff writer James Hoyt can be reached by email or (202) 478-1926.

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