It's time to ramble on…

The thoughts of a young journalist in southeastern Michigan

My curious answer from CMU’s lawyers regarding FOIA requests

with one comment

Back in February, I had (at least what I considered) a bright idea: I would request, per the Michigan Freedom of Information Act, all FOIA requests submitted to Central Michigan University during a span of time. After obtaining those requests, I would break down the trend of what’s being asked for and see why that trend occurred.

After taking an extension and waiting for funds to be transferred for processing costs, I finally got ahold of the documents. To no surprise, most of the requests made through the general counsel office was for athletics information – about 40 percent.

But one trend I didn’t notice until later involved the redactions made in the requests. After talking with David Cuillier, assistant professor at the University of Arizona and chairman for the Society of Professional Journalists FOIA Committee, he asked if there were any redactions. There were two types that had made: they removed names of “private citizens” to protect “an unwarranted invasion of privacy,” and redacted names of all students – both CMU and non-CMU students – citing the Family Educational Rights and Privacy Act. After talking about them for a few minutes, Cuillier paused for a second and I heard him say, “That’s illegal.”

After then speaking with Carolyn Carlson, an assistant professor at Kennesaw State University in Kennesaw, Georgia and chairwoman of the SPJ FERPA Committee regarding the FERPA redactions, she echoed what Cuillier had told me, and that was educational records were specific items such as grades, disciplinary measures, etc., and not FOIA requests.

The tweet the SPJ Twitter account sent out linking to my redactions story that published April 30, 2010 on cm-life.com.

I then met with Kathy Kelly, the assistant in CMU’s general counsel’s office that handles FOIA requests and Mary Roy, assistant general counsel. The way their office interpreted FERPA was that every document contained at a higher educational institute was protected by FERPA, because all of those were considered “educational documents.”

At first glance, FERPA may be understood as such, at least according to the literal text (even though both conditions must be satisfied since the conjunction “and” is used):

(A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), 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.

But what really began to get at me was a little bit farther down in the Act. One of the FOIA requests that I used as an example was from a graduate student at an institution in Orangeburg, South Carolina, wanting information for his or her dissertation on students retention and wanted documents related to students that had left CMU. The name of the student, institution, and instructor were all redacted. The city, state and ZIP code were not, as well as the individual school that person attended was not.

Carlson told me that this type of information was not under the “educational records” blanket, because it was directory information. And sure enough, in the Act, it states that unless that student is enrolled at that institution, CMU does not have to withhold it. According to Clause 6 of the Act:

For the purposes of this section, the term “student” includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution.

The example Roy used with me was if I clip a newspaper article and leave it at my apartment, it is not FERPA protected. But if she were to clip out a newspaper article and file it at her desk in her office on campus, that would have FERPA protection. So, in essence, we could have the same newspaper article, and she could redact information from her copy, if it mentioned a student or any identifiable information that would pinpoint an individual.

This argument seems loose to me, and does not seem to be the letter of the law. FERPA is designed to protect students and their privacy, and that is a good thing. But, to submit a FOIA, a request for public information, and not know that the request itself is a public document is a stretch at best.

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Written by David Veselenak

April 30, 2010 at 9:42 pm

One Response

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  1. Yeah, universities can interpret FERPA anyway they want, as can the U.S. Department of Education, but that doesn’t make it right or legal. The intent of FERPA was to protect students from being embarrassed by people seeing their grades. FERPA has been twisted beyond recognition to include anything involving a student (except for crime records, directory info and a few other things). That’s just wrong. Even Buckley, the creator of FERPA, said in a Columbus Dispatch article about the law that it’s been twisted beyond recognition. Some universities even claim that parking tickets are protected. But when challenged in court they may very well lose (University of Maryland lost to its student paper over parking tickets). Bottom line: Use the sniff test. Is a parking ticket really an education record? Is a FOI log really an education record? We’ve seen school lunch menus kept secret under FERPA. The law needs an overhaul, and in the meantime, universities need to be shamed into doing the right thing and giving out important information that does not disclose a student’s education performance.

    David Cuillier

    May 1, 2010 at 5:37 pm


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