Antonio Olivo reports a decision that has me hoping that the University of Illinois appeals:
A federal judge has ruled that the University of Illinios is not barred from releasing the names and other information about hundreds of college applicants who appeared on an internal list of well-connected students, part of a legal dispute between the university and the Chicago Tribune that stems from the newspaper’s 2009 “Clout Goes to College” series.
In a case that has pitted privacy concerns against the public’s right to know, U.S. District Court judge Joan Gottschall ruled that U. of I. is mistaken in citing the federal Family Education Rights and Privacy Act of 1974 in its denial of the Tribune’s efforts to obtain the student’s names, grade-point averages and college admissions test scores.
Read more in the Chicago Tribune. I’ll have to get and read the whole decision on this one, as I am somewhat stunned at the judge’s statement that FERPA, the federal law that protects the privacy of students’ educational records,
“does not specifically prohibit Illiniois from doing anything, so the University may not use the federal law as authority to withold the records”
While I realize I am not a lawyer or a judge, I think the judge may have gotten this one wrong. By implication, if Section 99.31 specifies the only conditions under which a covered entity can disclose records without consent, then it does prohibit the university from disclosing under conditions that are not specifically mentioned. That section reads:
An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:
Nowhere in that section is a press inquiry.
That said, a judicial order is one of the exemptions, and if the judge has now ordered the release of the information, the university could and must disclose, but prior to any order, my interpretation of FERPA is that they were prohibited from disclosing identifiable records. I would think that if the judge has ordered the release of the records, the university would notify the students so that they have an opportunity to try to quash or fight the order.
I don’t like seeing universities hide bad behavior behind a FERPA shield, but I do suspect that the judge got this one wrong and I hope the university appeals the decision. That said, I still have to read the decision and my opinion is subject to change if anything else emerges.
Any FERPA experts want to chime in?
Update: I obtained a copy of the judge’s order and have uploaded to this site, here.
Okay, here’s the crux of the judge’s reasoning (bottom of page 6 of the order):
The court must follow the command of the Illinois Supreme Court to construe the exemptions to FOIA narrowly. FERPA does not specifically prohibit Illinois from doing anything, so the University may not use the federal law as authority to withhold the records pursuant to 5 Ill. Comp. Stat. 140/7(1)(a).
The court must follow the command ofthe Illinois Supreme Court to construe the exemptions to FOIA narrowly. FERPA does notspecifically prohibit Illinois from doing anything, so the University may not use the federal lawas authority to withhold the records pursuant to 5 Ill. Comp. Stat. 140/7(1)(a).