Court considers whether FERPA overrides records law

The Iowa Supreme Court will weigh whether a federal student privacy law should override a state open records law, after the court heard oral arguments Oct. 15 over a university's withholding of documents in a sexual assault case.

In November 2007, the Iowa City Press-Citizen requested records from the University of Iowa about an alleged sexual assault involving two members of the football team that occurred one month earlier. The paper filed a lawsuit in 2008 after five requests under Iowa’s open records law produced only 18 released documents, The Des Moines Register reported.

The released documents did not contain any information about the assault and the resulting investigation, but information related to university policy and procedure, said Diane Stahle, the assistant Iowa attorney general handling the university’s case.

Iowa District Judge Douglas Russell ordered the university to release a log of the withheld documents to determine whether it should disclose them or not. The log, released in 2008, cited federal and state privacy laws and attorney-client privilege in withholding the 3,200 listed documents. The list included notes from the school’s athletic staff on the day of the assault, a summary of the event sent to housing officials and a note from the alleged victim’s mother to university officials.

In August 2009, Russell ordered the university to turn over 1,100 of the 3,200 documents listed in the index in some form, said Jim Lewers, editor of the Iowa City Press-Citizen. Nine hundred records had already been released and the rest were considered classified.

On appeal, the university refused to release the records even in redacted form, citing the Family Educational Rights and Privacy Act, which protects students’ academic information. The university argued that disclosing the documents would result in a loss of federal funding, as, under the act, funding is withheld from schools that continually release protected educational information.

Also, the university argued that because of the media attention surrounding the case, the Press-Citizen already knew the names of those involved in the assault. Additionally, they said because the requestors knew the alleged perpetrators’ and victim’s identities, university officials would violate FERPA by releasing redacted documents, and they argued for withholding the records entirely.

“Any student education record is confidential to the extent that the requestor knows the identity of the student, the student’s identity could not be protected by simply redacting the documents,” Stahle said regarding FERPA.

"The district court judge made the right ruling," Lewers said. "We don't think that FERPA should be a blanket exemption from openness for public universities. For journalists overall, it could set a bad precedent."

The university will be enticed to withhold more documents in the future, said Michael Giudicessi, a partner at Faegre & Benson LLP in Des Moines, who co-wrote a friend-of-the-court brief for several news organizations, including the Reporters Committee. It will “embolden the university to keep more documents secret in the future,” he said. “They’re arguing for wholesale secrecy rather than to say that secrecy will be futile anyway.”

The court has no deadline for issuing the ruling.