Fresh Tips: Access to “education records” under FERPA and KORA

For any journalist, but particularly student journalists covering their school’s administration and its relationship to its students, the federal Family and Educational Rights Act (FERPA) can present significant roadblocks to obtaining records that would otherwise be open to the public under the Kansas Open Records Act (KORA).  In Kansas, if a journalist asks a school for records under KORA, the school may not have to disclose the records under K.S.A. 45-221(a)(1), which provides that the administration “shall not be required to disclose…[r]ecords the disclosure of which is specifically prohibited or restricted by federal law.”  As FERPA is a federal law that restricts access to student records, school administrators are not necessarily in violation of KORA if they invoke K.S.A. 45-221(a)(1) to justify refusing to disclose “education records” as defined by FERPA.  

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Apart from a few exceptions listed in the statute, “education records” are considered to be any records with “personally identifiable information contained therein.”  As a general rule, the disclosure of such information is prohibited without the consent of the student and the student’s parents.  Thus, as a practical matter, FERPA affords university administrators the opportunity to resolve sensitive matters through the school’s internal disciplinary process and avoid the negative publicity that comes along with resolving such matters in court.

However, as a North Carolina judge “memorably declared” in 2011, “FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at (college).”  News & Observer Publ’g  Co. v. Baddour, No. 10CVS1941,  Memorandum Ruling of Hon. Howard E. Manning, Jr. at 2 (N.C. Super. Ct. April 19, 2011).  Most importantly, colleges and universities cannot rely on FERPA to prevent disclosure of information related to violent crimes, referred to in FERPA as the “violent crimes exception.”  Under that exception, journalists and members of the public have the right to access documents indicating the “final results of any disciplinary proceeding.”  Although those “final results” are limited to the “name of the student, the violation committed, and any sanction imposed by the institution on that student,” FERPA does not prevent a university from disclosing that information 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 a “crime of violence” or “nonforcible sex offense.” 20 USC 1232g(b)(6)(B).

Schools understand or should understand FERPA’s “violent crimes exception” and should be prepared to disseminate the “final results of any disciplinary proceeding” upon request. However, KORA includes exemptions that could allow the school to justify refusing to disclose the names of the individuals involved in a “final disciplinary proceeding.”  One such exemption, set forth at K.S.A. 45-221(a)(30), protects personal privacy.  Thus, a school administration may be free under FERPA to grant a request for disciplinary records but may nonetheless withhold the names of students.

One possible form a journalist might use to make a request for results of the “final disciplinary proceeding” from a college or university is as follows: “Pursuant to the Kansas Open Records Act, K.S.A. 45-215 et seq., I hereby requests on behalf of [insert name of news organization] that [insert name of institution] disclose any and all documents indicating the final results of any disciplinary proceeding, including any violations committed and any sanctions imposed, involving any and all individuals who were alleged to have violated the school’s [insert name of implicated policy] and resolved their case under the terms of that policy at any time between [insert start date] and [insert end date].”

Although the FERPA provision that allows disclosure of information about violent crimes exception may be the most useful of FERPA’s exemptions, especially with respect to tracking Clery Act compliance, “[a]mong the exclusions from the definition of ‘education records’ – and thus from the privacy requirements of FERPA – are records of a law enforcement unit of an educational agency or institution.”

Ultimately, although FERPA makes access to student records more difficult than to other public records in the possession of non-college, non-university public agencies, being aware of its limits and exceptions should make the process of obtaining what information is available a little less frustrating.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters.  Send him an email here.