Due to the coronavirus pandemic, student journalists are facing issues obtaining public records and accessing what should be open meetings.
SPLC staff attorney Sommer Ingram Dean said a majority of the calls to SPLC’s legal hotline in March and April have been about COVID-19 related access issues. She said student journalists have called about:
- Experiencing pushback from their college when reporters asked if students who tested positive for the virus were recently on campus
- Obtaining information about where coronavirus-relief funds are going
- Getting the results from campus-wide surveys that were sent out to students and faculty about how the school was handling coronavirus.
Dean said more than two-thirds of states have ordered state of emergency modifications to their Freedom of Information Act laws. Some states have increased the amount of time records holders have to respond to FOIA requests.
Many student journalists are being told that, because of closures due to the virus, records requests can’t be filled until campuses re-open, most likely in the fall. At the University of Florida, Zachariah Chou, a columnist at the The Independent Florida Alligator requested seven contracts for visiting speakers and got only four back. The records holders said that due to COVID-19, The Alligator would need to file a separate records request to obtain the remaining contracts once the university resumes normal on-campus business and access.
“Journalists in general, especially student journalists, are in a hard position right now and that’s because a lot of times schools and other institutions take forever to respond to public records requests anyway,” Dean said. “Now with the challenge of everyone working remotely, there may be legitimate reasons why people can’t get access to the records that students are requesting.”
Dean said some schools are citing the Family Educational Rights and Privacy Act as the reason not to provide coronavirus-related information about students. FERPA is a federal law intended to protect student privacy by preventing schools from disclosing personally identifiable information in a student’s education records. Even before the COVID-19 outbreak, many schools misapplied FERPA and used it to stonewall journalists.
The Department of Education recently released new guidance about what information schools can disclose regarding the coronavirus. The guidelines allow schools to share some information that would usually be protected under FERPA, because access to information is a public health concern during this pandemic. Dean gave the example that when a student living in a campus dorm tests positive for COVID-19, the school should inform their roommate. The new guidelines also say if a school learns a student has COVID-19, they can inform fellow students, faculty and staff, but cannot identify the student by name.
Dean said students should prioritize the information they want from their schools when requesting records. Now may not be the best time to request athletic records, for example, but students should definitely be asking for COVID-19 information. SPLC has a public records letter generator that can be used to craft these requests.
“Prioritize the things that you really want to get from your school,” Dean said. “As far as crafting the request, the narrower you can get, the better. The more specific you can get whether that’s naming people or narrowing it down to a specific or limited time period, with a reasonable description of the records you’re looking for, that’s going to make it easier for people who are responding to those requests to be able to focus their search for the request.”
Caitlin Hernandez, the managing editor of Courier, the student newspaper at Pasadena City College in California said she filed three separate records requests: student responses to COVID-19 inquiry forms sent out by the school, information about laptops the school distributed to students who don’t have reliable internet access and student messages to the college public relations email about their experiences with remote learning. The college told Hernandez they could not release any of the requested records because of FERPA and because these were not pre-existing records.
Hernandez said she spoke to Dean through the SPLC legal hotline, where Dean told her FERPA wasn’t an applicable excuse for not disclosing that information. Dean said while it is true that the school does not have to create a record that doesn’t already exist, the information Hernandez requested (like the survey responses) constitutes a record. Additionally, Dean said these records should be able to be released with personally identifiable information redacted.
Hernandez said she requested these records in hopes of pursuing investigative coronavirus-related stories. For now,, the Courier has to rely on the school public relations person and social media.
Dean said that while many open meetings are now being held through Zoom, some public officials are making it more difficult for the public (or news media specifically) to access these meetings. Dean said according to open meetings law in most states, it is illegal for public officials to restrict who can get a link to an open meeting.
Hernandez said when the university first moved to remote instruction in March, it was hard to figure out when and where student council or Board of Trustees meetings were taking place. In the beginning, reporters didn’t know if these groups canceled their public meetings. Sometimes they would not get a link to the meeting until it had already ended. Hernandez said they are no longer having these issues.
Education Writers Association hosted a webinar on May 5 to talk about how the transition to virtual public meetings is minimizing public input, transparency and communication between elected officials and the public, and to give reporters tips for dealing with these current access issues. Student journalists who are denied access to open meetings can contact SPLC’s legal hotline for help.
SPLC reporter Alicia Thomas can be reached by email at email@example.com or by calling 202-974-6318.
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