A Sports Reporter’s Guide to FERPA & Public Records

If a student has a job with the institution, then routine employment records kept in the institution’s normal course of business are excluded by FERPA protection. Some state’s open-records laws allow access to employment records, like salary information, personnel evaluations, etc. If so, FERPA cannot be used to deny access to the records just because the employee happens to be taking classes. 

Although courts have reached a number of conflicting conclusions on the issue, student disciplinary records are largely considered confidential under FERPA.

During the 1990s, state courts in Ohio (680 N.E.2d 956, 959) and Georgia (427 S.E.2d 257) ruled that documents related to student disciplinary infractions were outside the scope of FERPA because they were not “educational” in nature. The North Carolina Supreme Court, however, reached a contrary result in a suit brought by that school’s student newspaper, The Daily Tar Heel (496 S.E.2d 8, 13).

The Department of Education has forcefully defended the privacy of student disciplinary records, and in 1998 obtained a permanent injunction that blocked two Ohio universities from complying with open-records requests for student disciplinary records. The Sixth Circuit sided with the Department’s interpretation, finding that FERPA’s plain language makes “no content-based judgments with regard to its ‘education records’ definition” but applies to all records that “directly relate to a student and are kept by that student’s university (Id. at 812).”

However, Congress amended FERPA in 1998 to specify that certain disciplinary outcomes are excluded from FERPA—specifically, crimes of violence or non-forcible sex offenses. A 2017 North Carolina case (COA17-871) expanded this idea further, ruling that FERPA permits a school to disclose “the final results of any disciplinary proceeding . . . if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.” However, the court was careful to note that “FERPA only authorizes the disclosure of ‘the name of the student, the violation committed, and any sanction imposed by the institution on that student.”

In Kirwan v. The Diamondback (352 Md. 74), the Maryland Court of Appeals directly addressed – and rejected – the argument that FERPA prohibited a college from releasing copies of students’ parking tickets. The case was brought by the University of Maryland student newspaper, whose reporters had been tipped off that athletes and coaches were being granted special forgiveness for parking violations. The court stated that FERPA was “obviously intended to keep private those aspects of a student’s educational life that relate to academic matters,” and therefore did not cover parking tickets. 

A North Carolina state court (No. 10 CV 001941, 2012 WL 2614387) followed the reasoning of Kirwan and granted media organizations’ requests for parking tickets issued to student athletes at the University of North Carolina-Chapel Hill, rejecting UNC’s argument that the tickets were “education records” just because disciplinary sanctions were among the possible punishments. (The court also ordered disclosure of coaches’ cell-phone records, finding that the phone numbers of student athletes also are not “education records.”)

Conversely, a Michigan appeals court (230 Mich. App. 732) ruled in 1998 that a student-athlete’s vehicle registration form filed with the University of Michigan was covered by FERPA, because the document “directly related to a university student and is maintained by the university in its files.”

A lawsuit or settlement agreement cannot be withheld solely because a student is involved in the case. The clearest cases are those in which students play only a tangential role, such as being referenced in a legal proceeding that concerns current or former school employees. 

In Jennings v. University of North Carolina at Chapel Hill (340 F. Supp. 2d 679), a former student sued the University of North Carolina and its employees, alleging sexual harassment while she was a member of the soccer team. The defendants moved to seal the depositions of the student and her parents, asserting that the depositions could be embarrassing to other former students because they contained information about “their private lives or bodies.” The defendants argued that the students’ privacy interests were heightened by FERPA because they attended a federally funded university at the time the alleged comments were made. A U.S. district court in North Carolina rejected that argument, holding that the existence of FERPA did not heighten the students’ privacy interests because “[t]he information at issue in the depositions is not an ‘educational record’ as defined by FERPA, nor is it the type of information that would be on a FERPA-protected educational record.”

Despite the weight of legal authority, the Department of Education muddied the picture with its 2009 FERPA rules changes. As part of those changes, the Department advised that FERPA can apply to records pertaining to alumni as well as current students. In illustrating that point, the Department gave – as an example of the type of alumni record that would be confidential – “a settlement agreement that concerns matters that arose while the individual was in attendance as a student.” No explanation of “settlement agreement” was provided.

It seems clear in context that the Department could only be referring to settlements containing otherwise confidential educational information, such as a settlement agreement placing a student in an individualized education plan to accommodate a learning disability. Nevertheless, at least one state agency has already found the Department’s guidance confusing. 

In a 2010 ruling, the Mississippi Ethics Commission dealt with a dispute between the Hattiesburg American and the University of Southern Mississippi over records relating to the termination of an assistant tennis coach, who also was a university graduate student. A university attorney asserted that all records responsive to the newspaper’s request, including the agreement resolving the coach’s employment lawsuit, were “education records” under FERPA. The Ethics Commission ruled that – in light of the Department’s position on the confidentiality of former students’ settlement agreements – Southern Miss did not violate the law by withholding the records.

A clear majority of courts have ruled that reports involving misconduct by school or college employees do not fall within FERPA, even if students are mentioned as victims or as complainants. FERPA covers only records “directly related to” a student, and an investigation of employee misconduct does not “directly” relate to any particular student. Therefore, even the student names in such records can be disclosed.

In a 2003 ruling (53A04-0112-CV-527), an Indiana appeals court held that FERPA required the redaction of any personally identifiable information about students in records of a university investigation into allegations that an employee, Indiana basketball coach Bobby Knight, mistreated student athletes. Given the weight of contrary precedent, the Indiana Newspapers case appears unlikely to be followed by courts outside of Indiana.

Universities and other schools have avidly used FERPA to deny the disclosure of information about sexual assaults perpetrated by or against students. In a 2014 survey of 110 campuses conducted by the Student Press Law Center and the Columbus Dispatch, twenty-two schools refused to disclose basic campus crime information under FERPA, even though the requested information was explicitly exempt on the face of the law. In 2016, the University of Kentucky went even further, bringing a suit against the school’s independent newspaper, the Kentucky Kernel, to prevent the release of records related to an investigation of sexual assaults on campus.

However, FERPA expressly exempts and does not prohibit disclosure of the final results of disciplinary proceedings against students who committed serious crimes, including sex crimes and crimes of violence. In 2017, the University of North Carolina at Chapel Hill denied a request for the records of persons who had been found responsible for sexual misconduct by the university, claiming that even though the documents were exempted from FERPA, the university still had sole discretion on whether to release the documents. The Court of Appeals for North Carolina (COA17-871)  clarified that FERPA does not give the university discretion on whether to release public information that is otherwise subject to open record laws, and that FERPA cannot be interpreted to preempt state open record laws. (Although the court was careful to note that “FERPA only authorizes disclosure of ‘the name of the student, the violation committed, and any sanction imposed by the institution on that student’ from the general rule of non-disclosure of disciplinary records.”

Like any other written record, a photograph of video can become part of a student’s education record if it directly relates to the student and is maintained by the school. The Department of Education offers a FAQ guide on this subject, noting that a photo or video is likely directly related to a student if:

• The school uses the photo/video in a file for disciplinary action (including for the victim of the incident)
• The photo/video depicts an activity that:
  • Shows a student in violation of local, state, or federal law
  • Shows a student getting injured, attacked, victimized, ill, or having a health emergency
• The person (or entity) taking the photo/video intends to make the student the focus of the photo/video
• The content of the photo/video otherwise depicts personally identifiable information contained in a student’s education record

The FAQ notes that if a student’s image is merely incidental to a photo/video (i.e. the student is in the background of an activity like a basketball game), that student is not considered the focus of the photo/video under FERPA For example, it is the Department’s opinion that a surveillance video of two students fighting can fall under FERPA if it is used as part of a disciplinary action. Similarly, a video of a student having a seizure or the recording of a faculty meeting in which grades are discussed both fall under FERPA, according to the FAQ.

A school must provide parents and eligible students an opportunity to inspect any photos or videos that are part of that student’s education record, and the school must reasonably redact portions of the video directly related to other students without destroying the meaning of the record. If such redaction cannot be accomplished, only the students (and parents) to whom the video directly relates have a right to access it.

: As described above, many types of commonly requested records – such as police reports and parking tickets – have been removed from FERPA by law, by Department of Education rule, or by court interpretation. Journalists who encounter a FERPA roadblock should research the law and be prepared to argue for access, escalating the request up the chain of command and making sure school or college lawyers are copied on all correspondence. 

All state public-records laws put the burden on the agency to come up with a legal justification for withholding records. The burden is never on the requester to come up with legal authority in favor of access. If an agency simply claims “student confidentiality,” ask for a more specific legal justification, which will make it easier to challenge the denial if legal action becomes necessary. 

FERPA almost never should apply to anonymous statistical records. Journalists doing stories about trends should consider whether student names are really necessary, or whether the same point can effectively be made with redacted records. 

FERPA privacy is not all-or-nothing. If the identifying information can effectively be removed, then the agency is obligated to do so and to produce a partial record. FERPA is not a legitimate excuse for the blanket denial of a request. 

FERPA is waivable. An adult student can always consent to the disclosure of his or her education records to anyone (as can parents of minors), so journalists who have the cooperation of their sources should consider obtaining written FERPA releases if records are being withheld. 

FERPA precludes the release of information only by the educational institution itself through its employees or agents. Students are not “agents” of the schools they attend, and so they can disclose what they know (like the details of a disciplinary proceeding in which they are involved) without implicating FERPA. Specifically, FERPA has no application to students’ journalistic publishing, and if a school claims that students will be violating FERPA by publishing news they’ve gathered in a student journalistic publication, the school is wrong. The Department of Education said so explicitly in a 1993 opinion letter: “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers.” 

If you are denied access or amendment to your own records, you (or your parent) can file a FERPA complaint online or by calling (202) 260-3887. 

News organizations that are wrongfully denied public records on the basis of FERPA should publicize the denial, write editorials, and bring the denial to the attention of federal officials. The Department of Education often hears from advocates for greater privacy, but rarely from those aggrieved by excessive secrecy.