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Monday, October 5, 2009
FERPA Foibles

How a federal student privacy law clashes with the right to know, and how it can affect your campus.

By Michelle Rydell

Requesting records from a university can be like slamming against a brick wall, Jessica McBride tells her students — but don’t expect a helmet.

McBride, a veteran journalist from Wisconsin, doesn’t sugarcoat investigative reporting for her students at the University of Wisconsin-Milwaukee. It’s a battle to obtain information, particularly from the clutches of university administrators who’d often prefer to control the flow of information.

Her students have taken her words to heart. And they’re not the only ones fighting secrecy. Across the country, journalists are struggling to slip past the roadblocks set up by university administrations, which tightly guard student information. They often cite a 35-year-old federal student privacy law: the Family Educational Rights and Privacy Act, or FERPA.

Yet if journalists can persevere through the open records fight, there’s a good chance it will pay off, McBride said.

“I like to put my students in the fire,” said McBride, a full-time lecturer for print and online journalism studies. “I think they learn by getting roadblocks put in front of them. … If they’re throwing up an open records roadblock, there’s a good chance there is something there.”

Jonathan Anderson, a senior at the UW-Milwaukee, applied what he learned in the classroom to his job as editor-in-chief of The UWM Post, the school’s weekly student newspaper. But he didn’t expect that requesting the minutes and audio recordings of a public meeting would result in a battle against the university.

In his mind, if the meeting of the Union Policy Board, made up of students and university employees, was public, then shouldn’t the record of the meeting also be public?

The university disagreed, citing FERPA. Releasing the full minutes and audio recordings could compromise student privacy, university officials argued.

The records the university did turn over to the newspaper were heavily redacted, and parts of the audio recordings were erased, Anderson said. The university also removed information of all but one employee, arguing their inclusion would make it easier to identify student committee members.

This wasn’t the first time the newspaper had wrestled with university policies. Anderson said that over the past two years, the university has rejected two other requests for full audits of student organizations that deal with student funds, again citing FERPA. The Post editors had not decided whether they were going to pursue a legal battle with the university as of late August 2009, but they do know they will continue to push for more information.

“We have a direct interest in what they’re doing,” Anderson said. “We’re on the front line of making sure what they do is covered, and we can shine light on their actions.”

THE ORIGINS OF FERPA

Though an extreme case, The Post’s fight to obtain records is not unique. Across the nation, public schools and universities are curbing the free flow of information, all under the auspices of protecting student privacy through FERPA.

Congress passed FERPA in 1974. The law — also known as the Buckley Amendment after its original sponsor, Sen. James L. Buckley of New York — allows parents to review educational records until the student turns 18 or attends a postsecondary institution. At that time, the student and the university become the sole protectors of the student’s financial and educational information.

FERPA was thrust into the limelight in May, following a six-month investigation by The Columbus (Ohio) Dispatch. The inspection revealed surprising misuse by universities across the country that use FERPA to hide and protect records that indicate wrongdoing. Dispatch reporters Jill Riepenhoff and Todd Jones won the Sigma Delta Chi Foundation’s 2009 Eugene S. Pulliam First Amendment Award for their investigation.

If a school is found in violation of FERPA, the institution faces the possibility of losing all federal funding, including grants and financial aid. But Buckley told Riepenhoff and Jones in May that that’s not the same bill he authored. Buckley said schools are applying their own meaning to the law, and the law needs to be revamped.

Frank LoMonte, executive director of the Student Press Law Center, said FERPA originated as a mandatory disclosure statute, with privacy tacked on “almost as an afterthought.”

“The idea of it first came about as a way to make sure that parents could get access to their own children’s information,” he said. “It’s only today that schools have been interpreting it mainly as a secrecy law.”

LoMonte isn’t new to fighting the misuse and abuse of open records laws. The Student Press Law Center, a nonprofit legal assistance agency, advocates exclusively for student journalists’ First Amendment rights.

He said he has noticed an alarming increase in the misapplication of FERPA among public schools, which range from small state colleges to top-tier universities across the country. At times, the gatekeepers of information seem to be confused about the law, which usually results in holding back information, LoMonte said.

“They feel like if they fail to disclose, they can always remedy that,” he said. “If they erroneously disclose, they can’t remedy that. So the instinct is to turn over nothing.”

Paul Gammill, director of the Family Policy Compliance Office in the U.S. Department of Education, said the threat of removing federal funding from institutions is “the big hammer that the office has.” However, no public university or school has ever lost its federal funding because of FERPA violations in the law’s 35-year history, Gammill said.

FERPA violations tend to be accidental violations self-reported by universities, he said. Repeat offenders may be threatened with the loss of federal dollars if violations continue.

“Usually, it’s an innocent mistake, but the results aren’t so innocent,” Gammill said.

But LoMonte said that sometimes, claiming FERPA is just an easy way to hide inconvenient information.

Carolyn S. Carlson, who serves on SPJ’s Freedom of Information committee and is an assistant professor of communications at Kennesaw State University in Georgia, describes FERPA misuse as an epidemic that isn’t going away.

“More and more schools are being emboldened, seeing other schools get away with it,” Carlson said. “Until some court rules and until the Department of Education issues some strong fines against schools for abusing FERPA, it’s just going to get worse.”

TIPS TO OVERCOME FERPA HURDLES - From Frank LoMonte, Executive Director of the Student Press Law Center

1) GET IT IN WRITING

Open-records laws put the burden on the agency to cite a legal basis for denying a request; if you haven’t been given that justification, press for it. In many cases, the school realizes there is no legitimate reason to deny your request. The written evidence pins down the school’s story, if you plan to pursue legal action.

2) DON’T SETTLE FOR THE FIRST OFFER

If an institution denies your request, start negotiating. Is there a way to narrow the request to what you really need without compromising the story? A counter-offer is a good way to signal politely that you aren’t accepting “no” for an answer.

3) CONSIDER A REDACTED VERSION

Can the story be told effectively with statistics instead of names? Courts have ruled that documents purged of names and other identifiers, even if they relate to individual student conduct, are not confidential FERPA records.

4) PURSUE A WAIVER

If the student named in the records gives consent, then it’s not a FERPA issue. End of story.

5) KNOW THE LAW

Many administrators — and some school attorneys —don’t realize that students can’t sue the school for wrongful disclosure under FERPA. Schools only face penalties from the U.S. Department of Education, which has never penalized a single school for violating FERPA. Why? FERPA only penalizes the lack of an effective policy, not one particular disclosure.

BREAKING THE SILENCE

After a string of revisions that strengthened its authority, FERPA is now one of the nation’s strongest privacy laws. Its latest amendment, which took effect in January, worries some freedom of information advocates, including SPLC’s LoMonte.

Institutions have the responsibility of determining whether “statistical information or a redacted record will identify a student, even though certain identifiers have been removed,” according to the amended law.

This troubles LoMonte, who views the new rule as confusing and restrictive. He argues that more limitations strangle freedom of information and could lead to serious safety concerns.

LoMonte suggests that under the new amendment, if a journalist or parent goes to a school and wants to know how many students were punished for bringing guns on campus and what the penalties were, schools could reject the requests because that information could be traceable to a student. He argues that a student who commits a crime on campus has no legitimate privacy interest.

“There’s no counter balance that takes into account the overriding public’s right to know about serious incidents like guns in schools,” LoMonte said.

Gammill said the 2008 amendment, which marks the ninth revision Congress has approved, adds nothing new about limitations on statistical information. “It’s always been that way,” he said.

But he hopes the amendment does clarify when institutions can release information, particularly in emergencies. Still, Gammill said “the simple answer is that there is no simple answer,” which he said is where university review boards are useful.

Kevin Lessmiller, a senior at the UW-Milwaukee who succeeded Anderson as editor-in-chief of The Post, discovered firsthand how heavily redacted records can become when universities try to protect themselves by claiming FERPA.

As part of the Student Press Law Center’s annual records audit, Lessmiller and members of his Advanced Reporting class were asked to request non-academic misconduct records from institutions across the country. Lessmiller was assigned Purdue University in Indiana and his own school in Wisconsin.

Though he received the requested records after about a month of constant communication, it was not an easy process.

“It was frustrating, but that’s journalism,” Lessmiller said. “There are always going to be barriers that you have to work through to get to any story.”

After Lessmiller participated in the audit, he chose to take it one step further and examine the University Student Court, which generally handles disputes between student organizations. The five student justices on the court are paid about $7,000 per year from student fees, Lessmiller said.

The university refused to reveal information about the budgets and other records of the student court. But according to Lessmiller, the real surprise came when the university withheld even the names of the justices, again claiming FERPA.

Lessmiller had to get signed waivers from each justice to obtain any information, which was frustrating, knowing their salaries are paid by students like him.

“(The university) seems to interpret FERPA in a very, very broad manner,” he said. “I would assume (the university) is protecting itself.”

But that’s no excuse for FOI advocates. He and every other student on campus should know where their money is going, Lessmiller said.

LoMonte identified UW-Milwaukee as one of the worst FERPA-offenders in the history of the Student Press Law Center.

“The school has a pattern going back several years of denying legitimate open-records requests on the basis of FERPA interpretations that take literalism to the point of irrationality,” LoMonte said.

“There are some schools that appear legitimately confused over the application of FERPA, but UWM’s repeated misuse of FERPA goes beyond a good-faith misunderstanding,” he said.

UW-Milwaukee officials say the university follows the law very carefully, although they understand there is a legitimate interest in student organizations’ activities.

Amy Watson, public records custodian for UW-Milwaukee, declined an interview but released the university’s position statement, which says that if a group’s membership is small enough, it may not be possible to release certain records without violating FERPA. If records can be redacted and still protect student privacy, those records are then released.

The university argues that FERPA can apply to “any records that contain student information, apart from directory information, since the records are in the possession of an educational institution.”

Though the university acknowledges that “questions have been raised about UWM’s interpretation,” nobody has provided legal authority for the argument that the university is misapplying FERPA, according to the statement.

“We agree that FERPA’s protection of these sorts of records may lead to less transparency,” the statement reads. “Where UWM can facilitate the release of such records by obtaining student waivers, it has done so. This approach, however, is limited by the students’ willingness to waive their rights under FERPA.”

The university’s hesitation in answering open-records requests is echoed by institutions across the country, as Lessmiller and his peers discovered in Jessica McBride’s Advanced Reporting class.

The students at UW-Milwaukee found only seven of 24 public universities provided the full non-academic misconduct statistics they requested. Some of the universities provided some statistics, though often those numbers were outdated, McBride said.

Administrators released statistics at the University of Kentucky but denied 2009 data, citing FERPA’s new amendment, according to an SPLC report that reviewed the audit’s findings.

McBride said her students were careful with what they requested during the audit. The requests were about statistics on campus discipline but did not ask for names or other identifiers of students. She speculates that many of the denials came from gatekeepers who didn’t have experience working with journalists.

“Some got suspicious and hostile right away,” McBride said. “(Students) could tell there was a lack of familiarity at getting open-records requests, and a lack of familiarity with journalists.”

SIGNS OF DANGER

The confusion — and misuse — surrounding FERPA and its amendments can translate into deadly danger for students and communities, said S. Daniel Carter, director of public policy for Security on Campus, a nonprofit campus safety watchdog group.

Carter cites a number of instances, most notably the 2007 Virginia Tech shootings, where he believes crime on campus is directly linked to a lack of communication because of FERPA fears.

“It’s a classic example of confusion leading to a very bad outcome,” Carter said.

Members of Security on Campus have advocated for crime-related exceptions to FERPA since the 1990s and have influenced Congress to make substantial changes, Carter said. But he worries that the new amendments, though necessary in his mind, make the original law even more confusing.

The exceptions to FERPA lead to information gatekeepers who are not up-to-date with the current law, Carter said. The result is attorneys and administrators who “simply default, and say we’re not going to release anything because it’s less risky.”

Carlson, who specializes in freedom of information issues that involve campus crime, said that although Congress amended FERPA in 1998 to explicitly state that the law does not protect crime records, she still spends a considerable amount of time helping students who meet resistance. The amendment requires university crime reports to be available after two days of the initial report, although Carlson said the law is not always upheld.

“(It) doesn’t stop some campus police departments from trying to pull the wool over the eyes of naïve campus media reporters by blaming FERPA for not giving them the information they need to cover campus crime,” she said.

To both Carlson and LoMonte, FERPA needs a complete overhaul. LoMonte said a better bill would balance student privacy with the public’s right to know. He said an updated law should protect schools from losing federal funding from good-faith disclosures and provide strict penalties for refusing to disclose public information.

“There’s got to be some kind of penalty for frivolously using FERPA to conceal records that you know are public records,” he said. “If FERPA continues to be used frivolously as it is today, it will become meaningless.”

AN ONGOING STRUGGLE

For Anderson, former editor-in-chief of The UWM Post, the plunge into First Amendment law and open records has been a real-world experience for his journalism and political science studies. Upon his graduation in December, he hopes to continue as a journalist or pursue media law.

But he said it’s frustrating knowing that the records should be legally open to the public.

“When the records of their decisions and their meetings are kept secret, that’s a problem,” Anderson said. “And it’s not just a problem for the media, but for the students and the public.”

LoMonte said the wild misuse of FERPA should be disconcerting not just for freedom of information advocates, but for all taxpayers. It’s dangerous to conceal how schools and universities are using taxpayer dollars, he said.

“The whole reason we have open-records laws is so the public can evaluate if government agencies are doing their job,” he said. “If the public can’t find out basic information like how safe our schools are … then we’re operating in a climate of blind trust.”

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