This document is the plaintiff's response to the defendant's motion to dismiss. It argues that the defendant has not provided sufficient grounds for dismissal under the motion to dismiss standard. It asserts that the plaintiff's complaint alleges an ongoing series of exchanges regarding requests for identifiable parking citations issued to student athletes, not just five specific instances. It also argues that the requested records (parking citations) do not qualify as educational records protected by FERPA, as they are maintained separately and not as part of students' permanent files. Even if some records cannot be disclosed due to FERPA, the university still has an obligation to provide accessible portions of the requested records.

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOEY STIPEK, )
Plaintiff, )
)
v. ) Case No. CIV-13-1059 M
)
THE STATE OF OKLAHOMA ) On Removal from Cleveland County
ex rel. BOARD OF REGENTS OF ) District Court Case No. CIV-13-1090
THE UNIVERSITY OF OKLAHOMA, )
Defendant. )
PLAINTIFF’S RESPONSE TO
DEFENDANT’S MOTION TO DISMISS
NOW, the Plaintiff, Joey Stipek, to oppose the Defendant’s Motion to Dismiss. In support, the
Plaintiff states as follows:
I. THE DEFENDANTS HAVE FAILED TO PROVIDE SUFFICIENT GROUNDS
TO PREVAIL UNDER THE STANDARD FOR A MOTION TO DISMISS.
Although the Supreme Court has recently clarified that a complaint must contain enough
allegations of fact “to state a claim to relief that is plausible on its face” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), it is important to note that an initial complaint is still only
intended to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008). The court still assumes
the truth of all well-pleaded facts and draws reasonable inferences therefrom in the light most
favorable to the plaintiff. Dias v. City & Cnty. Of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
The court’s function is not to weigh potential evidence that the parties might present at trial, but

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to “assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which
relief may be granted.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
A motion to dismiss is still considered “a harsh remedy which must be cautiously studied,
not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of
justice.” Dias v. City & Cnty. Of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009). Therefore, a
complaint is still allowed to proceed “even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and unlikely.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
Applying this standard to the Plaintiff’s Complaint, the first thing that is important to
note is that the Plaintiff does not allege only five specific instances where open records requests
were made – only one of which was made on the Plaintiff’s own behalf. On the contrary, it is
evident that there was an ongoing series of exchanges with the University of Oklahoma’s open
records office where various parties made several different attempts to obtain identifiable
parking citations issued to student athletes. The Plaintiff initially attempted to obtain these
records on or about September 10, 2012 (Paragraph 10, Plaintiff’s Complaint) and there were
“several emails” between October 1, 2012 and November 27, 2012 traded between Lindsey Ruta,
Joey Stipek, and the University of Oklahoma’s open records office (Paragraph 13, Plaintiff’s
Complaint). And, in at least one of those e-mails on or about November 27, 2012, the Director of
the Open Records Office cites other conversations being had with various parties. (Paragraphs
14-15, Plaintiff’s Complaint).
These facts provide the basis for a reasonable inference that there was an ongoing series
of exchanges where the students made several attempts to secure these records and there were
several denials. This culminated in Joey Stipek retaining legal counsel on April 24, 2013. A final

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formal demand letter was submitted to the President of the University of Oklahoma on or about
May 8, 2013 – describing the students’ difficulties obtaining these records and making one final
plea, requesting these records in his own name and on his own individual behalf. That request
was effectively denied by the University of Oklahoma choosing to ignore it. The case was filed
more than four months later on September 12, 2013. And, as of the filing of this response on
December 6, 2013 almost seven months later, the Plaintiff has still not received a response.
For the purposes of meeting the legal standard required to meet to defeat the Defendant’s
Motion to Dismiss, the Plaintiff need not pinpoint a precise moment in time that a specific
request was made and a specific denial was received – particularly when there was an ongoing
series of exchanges over a protracted length of time. At some point September 10, 2012 and
September 12, 2013, it is certainly plausible that the desire of Joey Stipek and the other students
to obtain athletes’ parking citations was clearly communicated to the University of Oklahoma
and, at some point, it is certainly plausible that this request was denied on the basis of the
institution’s interpretation of the Family Educational Rights and Privacy Act. That’s the only
standard that needs to be met.
Indeed, the University of Oklahoma is not asserting that it never had any clue that the
Plaintiff wanted any of these records and that they are available at any time upon his request. The
institution’s assertion is that those records may not be released due to a confidentiality
requirement. The assertion that he did not personally frame a request and that that request was
not denied has no substance. He clearly wants the records. He has clearly made that desire
known. The institution is clearly aware of that desire. And, he has never been provided them. So,
the real dispute is whether he is legally entitled to the requested records.
II. THE PLAINTIFF IS LEGALLY ENTITLED TO THE REQUESTED RECORDS
UNDER THE OKLAHOMA OPEN RECORDS ACT.

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A. The Oklahoma Open Records Act presumes that all public records must be made
available unless an exception can be shown.
The Oklahoma Open Records Act is an intentionally broadly-worded statute. Public
bodies are defined under 51 O.S. § 24A.3(2) to include, but not be limited to:
“. . . . any office, department, board, bureau, commission, agency, trusteeship,
authority, council, committee, trust or any entity created by a trust, county, city,
village, town, township, district, school district, fair board, court, executive office,
advisory group, task force, study group, or any subdivision thereof, supported in
whole or in part by public funds or entrusted with the expenditure of public funds
or administering or operating public property, and all committees, or
subcommittees thereof . . . .”
And, records are defined under 51 O.S. § 24A.3(1) to include, but not be limited to:
“. . . . any book, paper, photograph, microfilm, data files created by or used with
computer software, computer tape, disk, record, sound recording, film recording,
video record or other material regardless of physical form or characteristic,
created by, received by, under the authority of, or coming into the custody,
control or possession of public officials, public bodies, or their representatives in
connection with the transaction of public business, the expenditure of public funds
or the administering of public property . . . .”
The general premise of every aspect of the Open Records Act is one of over-inclusion.
All records are presumed to be open to any person for inspection, copying, or mechanical
reproduction during regular business hours. As noted in 51 O.S. § 24A.2
“. . . . Except where specific state or federal statutes create a confidential
privilege, persons who submit information to public bodies have no right to keep
this information from public access nor reasonable expectation that this
information will be kept from public access; provided, the person, agency or
political subdivision shall at all times bear the burden of establishing such records
are protected by such a confidential privilege.”
Thus, the burden of proof always lies with the agency, institution, or official seeking to
keep the records secret. They are required to show the law which prohibits disclosure.

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B. The University of Oklahoma has only cited the Family Educational Rights and Privacy
Act and it does not apply to the Plaintiff’s request.
In the case presently before the Court, the crux of the dispute is the definition of an
“educational record” under the Family Educational Rights and Privacy Act. Under 20 U.S.C. §
1232g(a)(4)(A) is defined 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.”
The University of Oklahoma has interpreted this term broadly to include just about any
document which includes identifiable student information. Indeed, in her response to an
interview by e-mail on October 18, 2012, Rachel McCombs asserted that “any record that
contains information that is directly related to a student and is maintained by the University is
protected by FERPA.” (Attached Exhibits, p. 17)
Although the language of the statute is admittedly facially broad, most courts have
adopted a much narrower common sense interpretation which considers the legislative history of
the act being aimed at the privacy and protection of academic records.
In Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), the United States
Supreme Court was called to rule on a parent’s challenge to homework being graded by other
students in a classroom environment. The Supreme Court said that the word “maintain” was the
defining characteristic of an educational record quoting the Random House Dictionary definition
“to keep in existence or continuance; preserve; retain.” It noted:
“Congress contemplated that education records would be kept in one place with a
single record of access. By describing a "school official" and "his assistants" as
the personnel responsible for the custody of the records, FERPA implies that

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education records are institutional records kept by a single central custodian, such
as a registrar.”
The Supreme Court noted that the act required educational institutions to keep a log of
those who have requested access to a student’s educational records and their reasons for doing
so. And, these institutions were also required to provide formal hearings where parents and
students could contest the accuracy of these records. So, the Court felt that an expansive
definition of an educational record would impose onerous requirements that were clearly not
contemplated by Congress.
The U.S. Department of Education has also followed a similar line of reasoning in its
interpretation and enforcement of the act. In a letter to Montgomery County Public Schools dated
February 15, 2006, Dr. LeRoy S. Rooker wrote:
“FERPA does not protect the confidentiality of information in general, and,
therefore, does not apply to the disclosure of information derived from a source
other than education records, even if education records exist which contain that
information.”
This statement directly contradicts the assertion made by Rachel McCombs and the
University of Oklahoma. According to the U.S. Department of Education, information about
students itself is not protected – only information contained in educational records. Thus, a
document does not fall under the act’s cloak of secrecy merely because it contains some form of
identifiable information that is “directly related to a student.”
Courts in a variety of other jurisdictions have also reached similar conclusions: S.A. v.
Tulare County Office of Educ., 2009 WL 3296653, 3 & 4 (E.D. Cal. 2009) (E-mails that are not
printed a placed in a student’s permanent file are not educational records under FERPA); Arista
Records, LLC v. Does 1-9, 2008 WL 2982265, 6 (S.D. Ohio 2008) (Names and addresses of
students infringing copyrights are not are educational records under FERPA); Virgin Records

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America, Inc. v. Does 1-33, WL 3145838, 2 -3 (E.D. Tenn. 2007) (Names and addresses of
students infringing copyrights are not are educational records under FERPA); Rome City School
Dist. Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034, 1036-37, 806 N.Y.S.2d 381, 383 (N.Y.
Sup. 2005) (Videotape of an altercation between students is not an educational record under
FERPA); Board of Educ. of Colonial School Dist. v. Colonial Educ. Ass'n, 1996 WL 104231, 6
(Del.Ch. 1996) (Names of a victim and a witness to alleged sexual harassment by a teacher are
not an educational records under FERPA).
Although the Oklahoma State Supreme Court has yet to take up the issue presently before
the Court, two courts in other jurisdictions have ruled on the subject of campus parking citations.
In Kirwan v. The Diamondback, 721 A.2d 196, 204 (Md. Ct. App. 1998), the Maryland Court of
Appeals (the highest court in that state) ruled that campus parking citations were not
“educational records” under the Family Educational Rights and Privacy Act. It noted:
“The legislative history of the Family Educational Rights and Privacy Act
indicates that the statute was not intended to preclude the release of any record
simply because the record contained the name of a student. The federal statute
was obviously intended to keep private those aspects of a student's educational
life that relate to academic matters or status as a student. Nevertheless, in addition
to protecting the privacy of students, Congress intended to prevent educational
institutions from operating in secrecy. Prohibiting disclosure of any document
containing a student's name would allow universities to operate in secret, which
would be contrary to one of the policies behind the Family Educational Rights
and Privacy Act. Universities could refuse to release information about criminal
activity on campus if students were involved, claiming that this information
constituted education records, thus keeping very important information from other
students, their parents, public officials, and the public.”
Similarly, in 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), a North Carolina
judge also ruled that campus parking citations were not “educational records” and added:

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“FERPA does not provide a student with an invisible cloak so that the student can
remain hidden from public view while enrolled . . . .”
Applying these standards to the matter presently before the Court, the key issue seems to
be how the documents in question are maintained. If campus parking citations were part of the
student’s permanent file maintained in the Office of the Registrar (academic records) or the
Office of the Dean of Students (student disciplinary records), these documents might qualify as
educational records under the Family Educational Rights and Privacy Act. These documents are
closely controlled – requiring student’s written authorization before they are released.
However, campus parking citations do not fall into the same category. These records are
maintained for a relatively limited period of time by the Parking Services Office. The documents
never become part of a student’s permanent file. And, the citations issued to students are
intermingled with the citations issued to faculty, administration, staff, alumni, and visitors.
Moreover, the University of Oklahoma issues over 50,000 parking citations each year –
leaving copies of these documents under the windshield wipers of vehicles scattered all over
campus. If the Registrar decided to distribute student transcripts in a like manner, there would be
a heated outcry – demonstrating that campus parking citations are far more like the homework
assignments that the United States Supreme Court ruled on in Owasso Independent School
District v. Falvo. Consequently, the Family Educational Rights and Privacy Act does not apply.
C. Even if some of the requested records must be withheld, the burden is on the
University of Oklahoma to maintain those records in a fashion which allows them to
redact the protected information and release the rest.
Although the University of Oklahoma has asserted that only campus parking citations
issued to students are protected by the Family Educational Rights and Privacy Act, it has refused

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the rest of the records because it has no way of determining which citations were issued to
students. In an e-mail to the Oklahoma Daily dated October 2, 2012, Rachel McCombs noted:
“If our system permitted it, I could give you non-student parking citations.
However, as we discussed, the citation system is not linked to the permits, so we
have no way to know whether the person receiving the citation was a student or
not.” (Attached Exhibits, p. 28)
Rachel McCombs alluded to the same technical limitations of the institution’s
record-keeping system when Joey Stipek renewed the request in his own name and she denied it
in subsequent e-mails. (Attached Exhibits, p. 41-45) However, the law is clear that the University
of Oklahoma must provide those records not protected by the Family Educational Rights and
Privacy Act. Under 51 O.S. § 24A.5(2):
“Any reasonably segregable portion of a record containing exempt material shall
be provided after deletion of the exempt portions . . . .”
The University of Oklahoma cannot just throw protected records into a storage closet
with non-protected records and then claim that it is too much trouble to separate them. To allow
them to do so would be to render 51 O.S. § 24A.5(2) meaningless. In today’s day and age, it is
easy to link databases and to run searches and filters. And, the University of Oklahoma seems
quite capable of doing so when it wishes to put charges students’ bursar accounts for campus
parking citations. Thus, the assertion that providing non-student citations would be too
burdensome or that it would impose an unreasonable additional record-keeping requirement is a
disingenuous claim. The institution does it all the time when it suits them.
WHEREFORE, the Plaintiff, acting by and through his attorney of record, has shown that
the complaint contains enough allegations of fact “to state a claim to relief that is plausible on its
face.” Therefore, the Plaintiff respectfully requests that the Defendant’s Motion to Dismiss be
denied.