T. School and university records

The Public Records Law governs access to athletic, trustee and student records generally.

Access to certain educational records is controlled by federal law. A.R.S. § 15-141.

Some assessment and investigation records are specifically exempt from the Public Records Law.

A.R.S. §§ 15-350(A) and (B) provide that the Board of Education’s records from an immoral or unprofessional conduct investigation are “confidential and are not a public record.” However, the board can provide these records to the school that currently employs that individual.

A.R.S. § 15-537(I) provides that “evaluation report and performance classification of a certificated teacher retained by the governing board and the department of education are confidential, do not constitute a public record . . . . ” However, these records can be revealed to the certificated teacher or in an official proceeding regarding that individual’s employment.

A.R.S. §§ 15-551(A), (C) provide that the identity of any student who participates in a hearing regarding the discipline or dismissal of a teacher will be kept confidential.

In Arizona Board of Regents v. Phoenix Newspapers Inc., the court drew a distinction between a “prospect,” whose name was not subject to disclosure, and a “candidate,” whose was. The court stated that “[t]he public’s interest in ensuring the state’s ability to secure the most qualified candidates for the university president’s position is more compelling than its interest in, or need to know, the names of all of the prospects,” but held that releasing the names of the 17 final candidates served “[t]he public’s legitimate interest” and thus outweighed the candidates’ countervailing interests of privacy and confidentiality.  167 Ariz. 254, 258, 806 P.2d 348, 352 (1991).

“The right to inspect and review educational records and the release of or access to these records, other information or instructional materials is governed by federal law in the family educational and privacy rights act of 1974 . . . and federal regulations issued pursuant to such act.”  A.R.S. § 15-141(A).  The Family Educational Rights and Privacy Act of 1974 (“FERPA”) and associated regulations only permit disclosure of educational records with written parental consent, to comply with a judicial order, or pursuant to a lawfully issued subpoena.  See Catrone v. Miles, 215 Ariz. 446, 452-53, 160 P.3d 1204, 1210-11 (Ct. App. 2007) (citing 20 U.S.C. § 1232g (2000 & Supp. 2006) and 34 C.F.R. § 99.31(a)(9)(i) (July 1, 2006 and Oct. 13, 2006)).

(This section is blank. See the subpoints below.)

Records that are "educational records" under the FERPA cannot be disclosed under the state open records act. Colo. Rev. Stat. § 24-72-204(3)(e).

See Conn. Gen. Stat. §1-210(b)(11) as discussed above in Records Outline at II.A.2.k; see also Polman v. UConn School of Law, Do. #FIC 83-68 (Oct. 26, 1983) (respondent is a public agency).

University records are generally not considered public records unless they convey (1) matters discussed in meetings by the full Board of Trustees, or (2) relate to the expenditure of public funds. 29 Del. C. § 10002(l). In Judicial Watch Inc. v. Delaware Department of Justice, the New Castle County Superior Court affirmed the denial of requests for copies of archived records from President Joe Biden’s Senate career that the president donated to the University of Delaware on grounds that the records did not fall within these two limited categories of University public records. 2021 WL 22550, at *1 (Jan. 4, 2021).

Not specifically addressed.

Public school and university records are subject to the Act’s disclosure requirements.

The Idaho Public Records Act exempts certain records related to academic research at public institutions of higher education.  See Idaho Code § 74-107(20)-(23).

The FOIA specifically exempts the following information pertaining to educational matters:

(i) test questions, scoring keys and other examination data used to administer an academic examination;

(ii) information received by a primary or secondary school, college, or university under its procedures for the evaluation of faculty members by their academic peers;

(iii) information concerning a school or university’s adjudication of student disciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of the student; and

(iv) course materials or research materials used by faculty members.

5 ILCS 140/7(1)(j).

While the Illinois School Student Records Act, 105 ILCS 10/1 et seq., (which applies to Illinois’ primary and secondary schools) protects certain student records wherein students are individually identifiable, masked or de-identified student records and test scores are open. Bowie v. Evanston Community Consol. Sch. Dist. No. 65, 128 Ill.2d 373, 538 N.E.2d 557, 131 Ill. Dec. 182 (1989).

Generally, while records pertaining to individually identifiable students are exempt, records pertaining to a school’s or university’s administration are not.

Records concerning the work of the threat assessment team of a school district are closed. 5 ILCS 140/7(1)(kk).

Iowa Code § 22.7(1) states the following:

Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student's education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 44.

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).

“A subpoena is a sufficient court order under section 22.7(1) to allow a party to obtain possession of records to allow a court an opportunity to assess their relevancy and materiality.” Poole v. Hawkeye Area Cmty. Action Program, Inc., 666 N.W.2d 560, 565 (Iowa 2003).

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).  A public school may not publish on the internet personal information about its students without prior written approval.  Id. § 6001(2).

Records of the University of Maine, the Maine Maritime Academy and the Maine Technical College System are available to the same extent as other public records except for records, working papers, interoffice and intraoffice memoranda used by or prepared for faculty and administrative committees of these institutions. All financial records of the institution are available except records pertaining to financial aid granted to individual students. 20-A M.R.S.A. §§ 11418, 11444. Criminal history record information obtained by school departments pertaining to teachers, school employees and applicants for employment is confidential. 20-A M.R.S.A. § 6103(3).

Maine public university FOAA contacts can be accessed at: http://www.maine.edu/about-the-system/system-office/university-counsel/freedom-of-access-requests/.

No specific state law.

Institutions of higher education are public governmental bodies. Mo.Rev.Stat. § 610.010(4)(a). Governmental bodies can close meetings that relate to “[s]cholastic probation, expulsion, or graduation of identifiable individuals.” McClaskey v. La Plata R-II School Dist., No. 2:03CV00066 AGF, 2006 WL 1994903 at *4 (E.D. Mo. July 14, 2006).

In Krakauer v. Commissioner of Higher Education, 384 Mont. 527, 381 P.3d 524 (2016), the Montana Supreme Court muddled the rules governing access to student records. In an attempt to reconcile the Family Educational Rights and Privacy Act's (FERPA) prohibition against unilateral release of personally identifiable information with the Montana Constitutional right to know, the Court held that a student has a “heightened” privacy right for the purposes of the balancing test under Article II, Section 9. Upon remand, the district court, ruled that even under a “heightened” privacy standard the student discipline records of a star quarterback must be disclosed for failure to meet the right-to-know’s “clearly exceed the merits of public disclosure” standard.

Personal information in records regarding students is not public, other than routine directory information. Neb. Rev. Stat. §84-712.05(1) (Reissue 2014)

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

N.J.S.A. 47:1A-1.1 provides, in part:

A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;

test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;

records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;

valuable or rare collections of books or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;

information contained on individual admission applications; and

information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

Student, faculty, and staff lists with personal identifying information obtained from a public school may not be used for marketing goods and services to students, faculty, staff, or their families.  NMSA 1978 § 22-21-2(A).  Letters or memoranda that are matters of opinion contained in students’ cumulative files are also not available to the public.  NMSA 1978 § 14-2-1(C).  Information that is confidential under federal law may also exempt from disclosure under state law.  See, e.g., NMSA 1978 § 14-2-1(H).

How FERPA (the Family Educational Rights and Privacy Act) interplays with North Carolina’s public records law has rarely been litigated in NC state courts. In 2010, a coalition of nine media organizations sued the University of North Carolina for access to records related to an NCAA investigation of improprieties in the football program. The case explored interpretation of the interplay between the Public Records Law and the state and federal laws requiring confidentiality of education records. UNC has withheld certain records (including phone records and parking tickets) on the basis of FERPA and the North Carolina statute relating to confidentiality of student records. The case resolved with the trial judge determining that FERPA was not the all-encompassing “invisibility cloak” the University contended.

Although it often is, public school bus and security footage is not automatically an “education record” just because student images appear in footage. Footage is recorded and maintained by the local school system is certainly a public record under the meaning of our Public Records Law.  Because it involves a federally funded K-12 public school, it also falls under the purview of FERPA. Each request for footage of this nature should be taken on a case by case basis, and LEA or charter school should always endeavor to release as much information as possible to satisfy the Public Records Law while not running afoul of FERPA.

Generally restricted under the federal Family Educational Rights and Privacy Act, which is a specific exception to the open records law.

Please see the discussion of education records and information exemptions. Records of a school law enforcement unit regarding a student at a school are also confidential. N.D.C.C. § 15.1-19-14.

Generally open. SDCL §§13-49-21 and 13-8-43.

"Scholastic records" means those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution.  Scholastic records include directory information, which includes the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height as a member of athletic teams, dates of attendance, degrees and awards received, and most recent previous educational agency or institution attended Va. Code Ann. § 2.2-3705.4.A.1. Scholastic records containing identifiable information are excluded under the Act, but the subjects of the records or the subject’s guardian will have access to the records. Va. Code Ann. § 2.2-3705.4.

There is no specific FOIA exemption for school or university records. However, confidentiality of West Virginia public school records is required by several laws and policies. The West Virginia Student Data Accessibility, Transparency and Accountability Act, provides protection for a wide range of "Confidential student information" that is defined as:

"data relating to a person's Social Security number, or other identification number issued by a state or federal agency, except for the state-assigned student identifier as defined in this section, religious affiliation, whether the person or a member of their household owns or possesses a firearm, whether the person or their family are or were recipients of financial assistance from a state or federal agency, medical, psychological or behavioral diagnoses, criminal history, criminal history of parents, siblings or any members of the person's household, vehicle registration number, driver's license number, biometric information, handwriting sample, credit card numbers, consumer credit history, credit score, or genetic information."

W. Va. Code § 18-2-5h. See also, West Virginia Bd. of Educ. Procedural Rules, W. Va. R. § 126-94-1 et seq., which is applicable to all state educational agencies and institutions. (procedures "set forth the conditions governing the protection and privacy and access of parents and students as it relates to the collection, maintenance, disclosure and destruction of education records by agencies and institutions under the supervision of the West Virginia Board of Education"). See http://statelaws.findlaw.com/west-virginia-law/west-virginia-privacy-of-school-records-laws.html - sthash.0NxNV0Nw.dpuf

However, individual students' and personnel records generally would be subject to the balancing test applicable to personal information. Information concerning the institution, including trustee records, should be available for public inspection. A specific statute requires colleges and universities in the state to provide information to the public regarding alleged crimes occurring on campus and reported to the school's security or other officials. W. Va. Code § 18B-4-5a.

It should be noted, however, that many student records of state colleges and universities are exempt from disclosure pursuant to federal law. The Family Educational Rights and Privacy Act,  (“FERPA”) (20 U.S.C. § 1232g; 34 CFR Part 99) the Individuals with Disabilities Education Act (IDEA), the Protection of Pupil Rights Amendment (PPRA), and the National School Lunch Act (NSLA), are federal laws that provide various levels of confidentiality for student education records. FERPA applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Information relating to FERPA is available at the United States Department of Education website: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

Corporations created under the Higher Education Act are exempt from the provisions of the Open Government Proceedings Act and the West Virginia Freedom of Information Act. W. Va. Code § 18B-1F-4(a)(4).

All information relating to a reported incident of harassment, intimidation or bullying in schools is confidential, and exempt from disclosure under the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 18-2C-3(b)(10).

University application records are public after student identifying information is removed. Osborn v. Bd. of Regents, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158.

Elementary and secondary student records are confidential except that directory data which may include the pupil’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received may be made available to public inspection if the parent, legal guardian or guardian ad litem has been informed that the aforesaid information has been defined as directory data and may be released unless the parent, legal guardian or guardian ad litem objects. Wis. Stat. § 118.125(2)(j). The same protections are extended to students of institutions of higher learning which receive federal funds by 20 U.S.C. § 1232(2)(g). But neither the federal law nor the public policy underlying Wis. Stat. § 118.125(2)(j) preclude disclosure of university admission records from which all personally identifying information has been redacted. Osborn v. Bd. of Regents, 2002 WI 83, ¶¶ 31, 40, 254 Wis. 2d 266, 293, 298, 647 N.W.2d 158, 171, 174. Further, parents’ names and addresses are not student records, and are therefore subject to disclosure notwithstanding Wis. Stat. § 118.125(2)(j). See Hathaway v. Joint Sch. Dist., 116 Wis. 2d 388, 342 N.W.2d 682 (1984). Library circulation records are not subject to inspection. Wis. Stat. § 43.30(1).

These records are generally open unless they are expressly made confidential by state or federal law.