3. FERPA

In Kendrick v. Advertiser Co., 213 So. 3d 573, 574 (Ala. 2016), the court found that FERPA took precedence over the state Open Records Act and protected student-athlete financial aid forms from disclosure.

Pursuant to Section 7927.705 of the CPRA, “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” are exempt from the mandatory disclosure provisions of the CPRA.  Cal. Gov’t Code § 7927.705. Thus, if a record is exempt under the Family Educational Rights and Privacy Act (FERPA), (20 U.S.C. §1232g), it would be exempt under the CPRA.

However, in Poway Unified School District v. Superior Court, 62 Cal. App. 4th 1496, 1507, 73 Cal. Rptr. 2d 777 (1998), the court held that neither California’s Education Code pertaining to pupil records (Cal. Ed. Code § 49076) nor FERPA (20 U.S.C. § 1232g) governed tort claims filed against a school district arising from a hazing incident at a high school.  One claim was filed by a student who pled guilty in juvenile court to sodomizing another student with a broomstick. Id. at 1499-5000. The court reasoned that just because a litigant has chosen to sue a school district does not “transmorgrify the Claims Act claim into a [‘education record’ or ‘public record’].” Id. at 1507.

Subsequently, the court in BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006), held that a report detailing allegations of misconduct against students by the district’s superintendent was not exempt from public disclosure under either the California Education Code or FERPA. It reasoned that “[a] public record is one that ‘directly relates’ to a student and is ‘maintained’ by the school.” Id. at 754. The statute, the court said, was “directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline reports, and the like.” Id. Because the investigation report was not “something regularly done in the normal course of business” and not “regularly maintains in a central location along with education records . . . in separate files for each student,” the court held the education statutes did not preclude access. But see Rim of the World Unified Sch. Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2003) (holding federal FERPA preempted state statute requiring disclosure of student expulsion records); see generally Porten v. Univ. of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) (recognizing state constitutional right of privacy in student records).

No case has yet considered the interaction between FERPA and D.C. FOIA, but it is likely that materials covered by FERPA would be exempt from disclosure under FOIA under its § 2-534(a)(6) exception.

In 1993, the Georgia Supreme Court seriously questioned whether the Buckley Amendment had any impact on disclosure obligations under the Act since the Amendment did not itself prohibit disclosure of records, but rather provided for the withholding of federal funds. See Red & Black Publ’g Co. v. Bd. of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993) (rejecting state university system contentions that records reflecting charges of violations of university rules and regulations—e.g., hazing charges—are “education records” within the meaning of the Buckley Amendment). In 2012, the Act was amended to exempt from required disclosure any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds, under the federal Family Educational Rights and Privacy Act aka the Buckley Amendment. O.C.G.A. § 50-18-72(a)(37).

Section 92F-4 provides that an agency is not required to “comply with a UIPA provision when the agency’s compliance with the UIPA provision would cause the agency to lose or be denied federal funding, services, or other assistance from the federal government.” Register of Blind Persons, OIP Op. Ltr. No. 92-22 (Nov. 18, 1992). FERPA makes federal funding to educational institutions and agencies conditional upon compliance with “requirements regarding the disclosure of students’ educational records, or personally identifiable information contained therein.” Id.  Thus, while HRS Section 92F-19 “may permit the DOE to disclose students’ education records . . . the DOE would not be inclined to do so since such disclosure, if done without the written permission of the students’ parents, would likely jeopardize the DOE’s receipt of substantial federal funding.” Id.

The federal Family Educational Rights and Privacy Act (FERPA) may protect records containing personally identifiable information from disclosure. Educational records may be withheld in their entirety as “personally identifiable information” where the requester would otherwise know the identity of the referenced student(s), even with redactions. See Press-Citizen Co., Inc. v. Univ. of Iowa, 817 N.W.2d 480, 492 (Iowa 2012).

Access to education records and personally identifiable information about students in public and private schools is governed by federal law, including the United States Family Educational Rights and Privacy Act of 1974, and the federal Individuals with Disabilities Education Act, pursuant to 20-A M.R.S.A. § 6001(1).

See above.

In 2020, the North Carolina Supreme Court ruled that the University of North Carolina could not withhold the name of a student who committed sexual assault, the violation committed, and any sanction imposed by university on that student upon release of final results of any disciplinary proceeding.  The court ruled that FERPA did not preempt the state Public Records Act and did not grant the university discretion to determine whether to release the requested records.  See DTH Media Corporation v. Folt, 374 N.C. 292 (2020).

Not specifically addressed.

ORS 192.398 exempts from disclosure student records “required by state or federal law to be exempt from disclosure.”

Section 317(c)(11) of the Public Records Act exempts from public inspection and copying “[s]tudent records, including records of a home study student; provided, however, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.” The Vermont Supreme Court affirmed a trial court’s decision ordering disclosure of the “‘final results’ of any disciplinary proceeding against a student alleged to have committed a ‘crime of violence’ or ‘nonforcible sex offense’ where the college determines that the student violated the college's rules by committing the offense” citing to FERPA and recognizing that “the ‘student records’ exception [under the Public Records Act] itself provides an exception for records that may be released, upon request, under FERPA.”  Caledonian-Record Publ'g Co. v. Vt. State Colleges, 2003 VT 78, ¶ 12, 833 A.2d 1273 (Vt. 2003).

The Virginia exclusion relating to scholastic records makes no specific reference to FERPA.  However, the general structure of the Act, which gives effect to disclosures “prohibited by law,” along with general principles of federal preemption, indicate that the Act is not a vehicle for circumventing the requirements of FERPA or for expanding its rules of confidentiality by implication. Va. Code Ann. § 2.2-3705.4.A.1.

Virginia’s DMV laws pertaining to information electronically submitted by customers makes specific reference to the restrictions imposed by the federal Drivers Privacy Protection Act.  Va. Code Ann. § 46.2-216.1.

Wisconsin has a statute that provides similar protections to FERPA for pupil records.  Wis. Stat. § 118.125; see S.P.A. v. Grinnell Mut. Reins. Co., 2011 WI App 31, 332 Wis. 2d 134, 796 N.W.2d 874.