Requesting information about student records is tricky, and it’s even more difficult when working with athletic departments worried about losing its “competitive edge.”
As sports reporters, you are reporting on student athletes, of course. They are no different from other students under FERPA. However, they are under more scrutiny and university oversight. They are celebrity figures, and now can be paid upwards of millions of dollars through the new name, image and likeness (NIL) law.
Major investigations are coming out each year alleging systems of abuse, mismanagement of funds and the worsing statistics of student athletes struggling with their mental health. It is vitally important journalists know the law, know how to work alongside it and report important stories exposing the truth.
Courts have addressed the FERPA status of many commonly-requested school records, and generally have ruled against blanket claims of secrecy and in favor of at least partial disclosure. With that in mind, this guide is a sports-centric roadmap to work around FERPA and receive the records you need.
• What is FERPA?
• What about my state’s public record law?
• What if a document is largely free of educational records but has some mention of FERPA-protected information?
• What are records I can request with FERPA in mind?
• How do I report knowing my school may abuse FERPA and lack of transparency?
What is FERPA?
The Family Educational Rights & Privacy Act, commonly known as FERPA, is a 1974 federal law that requires schools and universities to protect the confidentiality of student educational records. Virtually every court that has been asked to define “education records” has applied a limited and common-sense understanding of the term.
FERPA serves a two-fold purpose: (1) to grant parents (and students 18 or older) access to information in the student’s education record, and (2) to protect that information from disclosure to third parties without parental consent.
The act defines “education records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” In other words, there are two essential criteria for a document to be confidential under FERPA: it must “directly relate” to a student, and it must be “maintained” by the institution. The law explicitly exempts several types of documents from the definition of “education records,” including teachers’ notes and records of non-student employees.
For a deep dive on FERPA law, check out the SPLC’s FERPA and access to public records guide.
A North Carolina judge said universities should not use FERPA as an “invisible cloak” for students to be shielded from public view. A Maryland appeals court said the federal law was not created as a way for schools to avoid releasing records because a student’s name is included. Rather, it said the law was “obviously intended” for the part of a student’s educational life relating to academic matters or status as a student to be protected and made private.
When a reporter sees a school deny their public records request, very likely it will list FERPA as a reason they “can’t” release such information. Sometimes, the university is correct in its denial, but other times, it’s a way to circumvent transparency — whether it is doing so consciously or not.
Schools will deny records for things with little relation to a student’s educational records. Some previous examples of what sports journalists may see are what parking tickets were issued to student athletes, the findings of investigations into academic dishonesty in college athletic programs or the names of recipients of complementary football tickets.
What about my state’s public record law?
Each state has their own set of laws dictating how state and local agencies — which includes public schools and universities — disclose information publicly or upon request. Each state’s laws are different, but they all have a similar baseline: government agencies must, within a reasonable time (or within a specified number of days) allow inspection and copying of any type of medium that records information.
Anyone can request such records, not just journalists, and they don’t need to supply a reason. If a request is denied, the agency has to have a legal justification — which is why many incorrectly cite FERPA.
These laws outline what you can request as well as what you can’t. This includes medical information, confidential attorney-client communications and information potentially leading to identity theft, such as Social Security numbers. Most states also allow an agency to deny a request if a request would be an unwarranted invasion of privacy.
What if a document is largely free of educational records but has some mention of FERPA-protected information?
The courts have determined, if a student’s personally-identifiable information that is protected by FERPA is redacted from a document, it is fair game to be given to the requesting party.
The Department of Education, however, has given unclear guidance on this subject. The department revised its FERPA rules effective January 2009 to broaden the definition of “education records.” Under the Department’s revised interpretation, schools are to deny requests for records – even with all identifying information removed – if information in the records could be linked to a particular student by someone in the school community with inside knowledge (even if the general public would have no idea of the student’s identity). Nor may schools release even name-withheld records to a requester the school “reasonably believes knows the identity of the student to whom the education record relates.” In explaining these changes, the Department was openly dismissive of concerns that the changes would unduly shield schools from public scrutiny: “FERPA is not an open records statute or part of an open records system. … Journalists, researchers, and other members of the public have no right under FERPA to gain access to education records for school accountability or other matters of public interest, including misconduct by those running for public office.”
A Florida appeals court decided that the records of an NCAA investigation into academic irregularities in the Florida State University athletic program – specifically, the transcript of an NCAA compliance hearing, and a committee report issued in response to the hearing – were not FERPA records because the student-athletes’ names were blacked out.
What are records I can request with FERPA in mind?
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.”
Parking tickets and vehicle records
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.”
Settlements and litigation documents
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.
Reports of employee misconduct:
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.
Sexual Assault and Campus Crime
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.”
Photo or videos
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.
How do I report knowing my school may abuse FERPA and lack of transparency?
In the absence of clear guidance from Congress or the Department of Education, abuses of FERPA are common. It has become routine for some schools and colleges to cry “FERPA” in response to virtually any open-records request, putting requesters in the position of having to wage a costly, time-consuming public-records lawsuit to get answers. Journalists can apply some common-sense reporting techniques to maximize their chances of obtaining needed information without a legal battle. Doing so often requires educating school officials about their disclosure responsibilities and about the limits of FERPA.
Know Which Records are Exempt
: 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.
The Burden is on the School, Not the Requester
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.
Look for Anonymous Statistical Records
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.
Ask for Redacted Files
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.
Get a Waiver
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.”
File a Complaint
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.
Publicize the Denial
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.
FERPA abuse is a widespread and common roadblock for journalists, but not one you are alone in fighting. When FERPA has been raised as an obstruction to journalists’ requests for public records, the courts have overwhelmingly applied a narrow, common-sense reading of FERPA that covers only academic and disciplinary records, or records of that nature, that directly identify students and are maintained by the school in an official, central location.
An athletic department is part of a public agency, much like the police department or city council, but sports brings people joy and entertainment unlike the other two examples. They have to follow the rules too. In the absence of federal reform, journalists can still obtain much of the essential information they need to perform their watchdog function if they learn the law, insist on a faithful application of it and publicize the most egregious abuses.
Remember: as a sports reporter, you are not clear of the responsibility of covering and serving your community. Student athletes are a huge part of that; they are the on-campus celebrities, hometown heroes, public enemies or the persona others look up to. Students, alumni and the surrounding community flock to watch sports games and cheer on their school. It’s up to you to ensure that school spirit isn’t tainted with abuse, corruption or other shady business.