Transcript of "FERPA's Directly Related vs. Tangentially Related Dichotomy "
FERPA’s Directly Related vs.Tangentially Related DichotomyBy Carol Jean LoCicero and Paul R. McAdooThomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com
FERPA’s Directly Related vs. Tangentially Related DichotomyBy Carol Jean LoCicero and Paul R. McAdoo1 The Family Educational Rights and Privacy Act, or FERPA, is a federal regulatory scheme whichconditions the receipt of federal monies by educational agencies and institutions upon compliance with itsdictates.2 This scheme both provides for access and limits access to “education records,”3 but does so witha carrot-and-stick approach. “The purpose … is to set out requirements for the protection of privacy ofparents and students ….”4 FERPA, however, is an often abused statute which educational institutions at alllevels use to shield their activities from public scrutiny.5 To counteract the expansive interpretation ofFERPA by educational institutions, the courts have recognized limits on what constitutes an “educationrecord” covered by the act. Under FERPA, an education record is defined as “those records, files, documents, and othermaterials which – (i) contain information directly related to a student; and (ii) are maintained by aneducational agency or institution or by a person acting for such agency or institution.”6 Courts have limitedthe scope of this definition through the “directly related to a student” language of the statute.1 Carol Jean LoCicero is a founding partner of Thomas & LoCicero, who has been practicing media law for twenty-five years. Paul McAdoo is an associate with Thomas & LoCicero. They are two members of the litigation teamwhich handled the NCAA v. Associated Press, 18 So. 3d 1201 (Fla. 1st Dist. Ct. App. 2009), litigation.2 See 20 U.S.C. § 1232g (a).3 “By its very terms, FERPA does not prohibit the disclosure of any educational records. Instead, it operates todeprive an educational institution of its eligibility for federal funding if its policies or practices run afoul of therights of access and privacy protected by the law.” NCAA, 18 So. 3d at 1210. This funding penalty has led states toenact their own legislation that, at least in part, incorporates FERPA’s access parameters. E.g., Fla. Stat. § 1006.52(2010).4 34 C.F.R. § 99.2.5 E.g., Frank LoMonte, FERPA abuse reaches new extremes with unconstitutional restraint against Wyomingnewspaper, Student Press Law Ctr. Blog (May 22, 2010), http://www.splc.org/wordpress/?p=753 (discussingWyoming preliminary injunction based upon FERPA and entered against a newspaper publishing records obtainedfrom a college); Jill Riepenhoff & Todd Jones, Secrecy 101, The Columbus Dispatch (May 31, 2009) available athttp://www.dispatch.com/live/content/local_news/stories/2009/05/31/copy/secrecy-redirect.html (discussing six-month investigation regarding use of FERPA by universities around the country with focus on athletic departmentrecords).6 20 U.S.C. § 1232g(a)(4)(A). See also 34 C.F.R. § 99.3.Thomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com
Both federal and state courts have drawn distinctions between documents which are “educationrecords” under FERPA and those records which only indirectly or tangentially include information aboutstudents. Records which only indirectly or tangentially refer to students and thus are not “educationrecords” include, among other things, teacher records. These are not “education records” because they donot directly relate to a student.7 In addition, once records which are “education records” are redacted ofstudent information, they cease to be “education records.8 One case that distinguished closed education records from those records of an educationalinstitution that fall outside FERPA’s protection was Kirwan v. The Diamondback.9 In Kirwan, Maryland’shighest court refused to apply FERPA’s “education record” exemption to documents concerning studentsand NCAA violations.10 The University of Maryland campus newspaper sought copies of allcorrespondence between the University and the NCAA involving a student-athlete who was suspended foraccepting money from a coach to pay parking tickets (which constituted an NCAA violation).11 TheUniversity claimed that the documents were “education records” and that FERPA prohibited their release.12The court disagreed, however, concluding that “correspondence between the NCAA and the Universityregarding a student-athlete accepting a loan to pay parking tickets” simply did not constitute “educationrecords.”13 In other words, the fact that a student-athlete who violated NCAA rules was discussed in adocument did not transform that document into an “education record” under FERPA.7 E.g., Ellis v. Cleveland Mun. Sch. Dist.., 309 F. Supp. 2d 1019, 1022-23 (N.D. Ohio 2004) (explaining that recordsof a school involving physical altercations with substitute teachers that included references to students “do notimplicate FERPA because they do not contain information ‘directly related to a student.’ While these recordsclearly involve students as alleged victims and witnesses, the records themselves are directly related to the activitiesand behaviors of the teachers themselves and are therefore not governed by FERPA.”).8 E.g., Osborn v. Bd. of Regents, 647 N.W.2d 158, 168 n.11 (Wis. 2002)( holding that redacted applicant recordswere not education records under FERPA because “once personally identifiable information is deleted, bydefinition, a record is no longer an education record since it is no longer directly related to a student”).9 721 A.2d 196 (Md. 1998).10 Id. at 198.11 Id.12 Id. at 199.13 Id. at 206.Thomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com
Ellis v. Cleveland Municipal School District14 likewise involved documents that only tangentiallyrelated to students. There, the plaintiff sought discovery of incident reports of altercations betweensubstitute teachers and students, as well as student and employee witness statements related to thosealtercations.15 The defendant school district objected to these requests, arguing that the documents were“education records” under FERPA.16 The court conducted an in camera review of the documents anddetermined that they were not “education records” under FERPA.17 According to the Ellis court, “FERPA applies to the disclosure of student records, not teacherrecords.”18 Thus, neither records concerning allegations of physical altercations between teachers andstudents, nor student and employee witness statements about the altercations were “education records,”even though such records did undoubtedly identify students. Furthermore, as explained by the Ellis court, “it is … clear that Congress did not intend FERPA tocover records directly related to teachers and only tangentially related to students.”19 Such records do not implicate FERPA because they do not contain information ‘directly related to a student.’ While these records clearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA.20 One of the most recent cases to address the question of whether records directly or tangentiallyrelate to students is NCAA v. AP.21 In NCAA, a consortium of media entities sought access to recordsrelated to an NCAA investigation into academic misconduct at Florida State University (“FSU”).22 FSU14 309 F. Supp. 2d 1019 (N.D. Ohio 2004).15 Id. at 1021.16 Id.17 Id. at 1021-22.18 Id. at 1022 (citation omitted).19 Id. (citation omitted).20 Id. at 1023 (emphasis added).21 18 So. 3d 1201 (Fla. 1st Dist. Ct. App. 2009).22 Id. at 1205.Thomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com
appealed the NCAA’s initial penalty.23 In order for FSU’s attorneys to have access to the underlyingdocuments via a “custodial website,” they had to execute a confidentiality agreement.24 The two recordssought by the media were a hearing transcript and the NCAA’s response to FSU’s appeal.25 The appellatecourt agreed with the trial court and held “that these records pertain to allegations of misconduct by theUniversity Athletic Department and only tangentially relate to the students who benefitted from thatmisconduct.”26 Because the records at issue had already been redacted of student names, the court alsoheld that the records were not education records because they did not reveal the identity of the students.27 Other courts have recognized and endorsed the critical distinction between records which directlyrelate to students and records which only tangentially relate to students, and have held that documentsmaintained by schools are not “education records” just because they may contain student names or otherpotentially sensitive student information.28 Similarly, several courts have held that where the student’s23 Id.24 Id.25 Id. at 1206.26 Id. at 1211.27 Id.28 Briggs v. Bd. of Trustees of Columbus State Cmty. Coll., No. 2:08-CV-644, 2009 WL 2047899 at *5 (S.D. OhioJuly 8, 2009) (holding that complaints made by students about a teacher did not directly relate to those students:“records relating directly to school employees and only indirectly to students are not ‘education records’ within themeaning of FERPA”); Wallace v. Cranbrook Educ. Cmty., No. 05-73446, 2006 WL 2796135 at *4 (E.D. Mich.Sept. 27, 2006) (holding that unredacted student statements provided as part of an investigation regarding schoolemployee misconduct were not “education records” under FERPA); Hampton Bays Union Free Sch. Dist. v. Pub.Employment Relations Bd., 878 N.Y.S.2d 485, 488-89 (N.Y. App. Div. 2009) (“In our view, teacher disciplinaryrecords and/or records pertaining to allegations of teacher misconduct cannot be equated with student disciplinaryrecords…and do not contain ‘information directly related to a student’ … such that disclosure is proscribed under[FERPA]”); Baker v. Mitchell-Waters, 826 N.E.2d 894, 899 (Ohio Ct. App. 2005) (explaining that studentcomplaints concerning abuse by teachers “do not contain information directly relating to students” under FERPA,but instead “directly relate to the activities and behaviors of teachers”); Brouillet v. Cowles Publ’g Co., 791 P.2d526, 533 (Was. 1990) (rejecting FERPA as a basis for withholding records of teacher certification revocations thatincluded references to students – including documents that contained information about sexual involvement ofteachers and students – because FERPA “protects student records, not teacher records”). See also Jensen v. Reeves,3 Fed. Appx. 905, 910 (10th Cir. 2001) (unpublished) (holding that a memorandum regarding playground incidentssent to the parents of those involved was not an education record under FERPA); Poway Unified Sch. Dist. v.Superior Ct. of San Diego Cty., 26 Media L. Rep. (BNA) 1943, 1948 (Cal. Ct. App. Apr. 13, 1998) (holding that it“defies logic and common sense” for a tort claims form filed by a student to be considered an “education record”under FERPA); City of Boston Sch. Comm. v. Boston Teacher’s Union, No. 05-3525-H, 2006 WL 4125023 at *4(Mass. Super. Nov. 30, 2006) aff’d 71 Mass. App. Ct. 1121, 2008 WL 1805676 at *2 (Mass. App. Ct. Apr. 23,2008) (unpublished) (“student witness statements are not ‘education records’ under FERPA”).Thomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com
personally identifiable information is deleted or redacted, the redacted record is no longer an educationrecord under FERPA.29 Courts have used common sense to limit the reach and scope of FERPA’s privacy scheme.Despite the “directly related to” vs. “tangentially related to” dichotomy, FERPA is still an often abusedstatute. However, recent decisions such as the NCAA case, hopefully will lead schools around the countryto assert FERPA in a more prudent manner.3029 Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trustees of Ind. Univ., 787 N.E.2d 893, 907 (Ind. Ct.App. 2003) (concluding that redacted student disciplinary records are not “education records” under FERPA);Osborn v. Bd. of Regents, 647 N.W.2d 158, 168 n.11 (Wis. 2002) (“once personally identifiable information isdeleted, by definition, a record is no longer an education record since it is no longer directly related to a student”).See also Bd. of Trustees, Cut Bank Public Sch. V. Cut Bank Pioneer Press, 160 P.3d 482, 488 (Mont. 2007)(“regardless of whether disciplinary records constitute ‘education records’ under FERPA, or whether redactedrecords remain ‘education records’ under FERPA, the end result is clear: FERPA does not prevent public release ofredacted student disciplinary records…”).30 FSU and the NCAA’s assertions of FERPA was a major issue in the NCAA case and certainly increased theamount of fees the plaintiffs incurred and thus were able to recover. The parties settled the attorneys’ fee issues inthat case, with FSU paying the media plaintiffs $65,000 and the NCAA paying the media plaintiffs $260,000.Thomas & LoCicero Tampa | South Florida 866.395.7100 tlolawfirm.com