Saturday, May 28, 2011

A new FERPA decision out of Arizona, arising from the Loughner case


I thought you would be interested in this decision by a trial court in Arizona, in which it held that documents scattered throughout a database, and only located by a keyword search, are not “maintained” by the institution for purposes of the Family Educational Rights and Privacy Act (FERPA). Therefore defendant community college was required to disclose email messages to, from, or about a designated student in response to a state public records act request because they were not maintained in a permanent file.

The decision, while not precedential, even in Arizona, shows how emails and other electronic communications or documents that contain private and apparently confidential information about students can subject to disclosure notwithstanding FERPA. In my view, such a holding raising issues relating to what students' expectations are concerning how their college or university are or should be "maintaining" such information so that it is subject to the protections of FERPA and state confidentiality statutes and regulations.

If this issue or others give rise to questions on policy and procedure concerning FERPA or other regulatory compliance or risk management which your institution would like addressed, Saul Ewing's higher education attorneys are ready to assist.

Enjoy your holiday weekend.


Francis X. Riley III
750 College Road East
Princeton, New Jersey 08540
(609) 452-3150 (office)
(609) 558-5277 (mobile)
(609) 514-3744 (fax)


C20111954 May 17, 2011
Procedural Background
Plaintiff, Phoenix Newspapers Inc., (“PNI” or “Plaintiff”) pursuant to A.R.S. § 39-121.02(A) and Ariz. R. P. Spec. Act. 4, applied for an Order directing Defendant, Pima Community College, (“PCC” or “Defendant”) to show cause why Plaintiff should not be promptly granted the relief sought in its Complaint for Statutory Special Action under A.R.S. § 39-121 et seq. (the “Arizona Public Records Law”). This matter arises out of the alleged shooting of a number of persons by Jared Lee Loughner in Tucson, Arizona on January 8, 2011. Loughner had been a student at PCC until approximately October of 2010. Plaintiff, PNI, publisher of the Arizona Republic, filed the within Complaint seeking certain documents from PCC. Specifically, by Special Action, PNI seeks access to the following documents:
a. Any and all written communications, including but not limited to email records, between or among PCC officials, staff or employees regarding Loughner, from January 1, 2009 to October 10, 2010; b. Any and all written communications, including but not limited to email records, between or among
PCC officials, staff or employees and any outside agency, public or private (e.g., law enforcement or
mental health organizations) regarding Loughner, from January 1, 2009 to October 10, 2010; and c. Documents sent or received by PCC or its employees relating to Loughner or his parents on or after September 29, 2010 to October 10, 2010 (including, without limitation, correspondence with
Loughner or his parents regarding Loughner’s suspension and terms upon which he could return).
Victoria Robertson Law Clerk
Page 2 Date: May 17, 2011 Case No.: C20111954
[Comp. ¶ 7(a-c)]. PCC asserted the email documents are student records under the Family Education and Rights Protection
Act (“FERPA”) and, therefore, refused to disclose them. PNI argued that the emails are not FERPA records and should be disclosed pursuant to this Special Action.
The Court has received and reviewed Plaintiff’s Complaint, Plaintiff’s Application for Order to Show Cause and Memorandum in Support, Defendant’s Answer to Plaintiff’s Complaint, Defendant’s Response to Plaintiff’s Application for Order to Show Cause, and Plaintiff’s Reply in Support of Application for Order to Show Cause. The Court heard arguments on this issue on April 29, 2011. Additionally, the Court received Defendant’s Notice of Submission of Documents for In Camera Review, Plaintiff’s Response to Defendant’s Notice of Submission of Documents for In Camera Review, and Defendant’s Reply to Plaintiff’s Response to Notice of Submission of Documents for In Camera Review. Finally, the Court reviewed all of the documents submitted for in camera review.
The documents submitted to the Court were divided into three groups. “Group A” documents are the result of a search of PCC’s employee email database for documents containing the word “Loughner” between the dates of January 1, 2009 and October 10, 2010. “Group N” documents are redacted law enforcement reports regarding Loughner which PCC previously released to the media. “Group N” documents are not at issue in this litigation. “Group L” documents are a compilation of documents, including email and other communications between PCC employees, which PCC provided to the United States Department of Justice in response to a grand jury subpoena. These items were also provided to Loughner’s criminal defense attorney.
FERPA was enacted to protect the privacy rights of parents and students through preventing the disclosure of students’ education records. Under FERPA “education records” are “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.” 20 U.S.C. §1232g(a)(4)(A). FERPA’s range is broad, including “records, files, documents, and other materials”. If records are not protected by FERPA, and not subject to any other privilege, then they must be disclosed under the Arizona Public Records Law which creates a broad presumptive right of access to the records of government institutions.
Victoria Robertson Law Clerk
Page 3 Date: May 17, 2011 Case No.: C20111954
“The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433 (2002) (citing Random House Dictionary). FERPA records “will be kept in a filing cabinet ... or on a permanent secure database .... in the same way the registrar maintains a student’s folder in a permanent file.” Id. at 433. Documents in an employee’s or another individual’s possession, such as email in an individual email account, but never seen or preserved by the educational institution are not maintained under FERPA and therefore not education records. S.A. v. Tulare County Office of Educ., No. CV F 08-1215, 2009 WL 3126322, at *7 (E.D. Cal. Sept. 24, 2009). Emails, like assignments, are fleeting and pass through many hands and are maintained once they are placed in the student’s permanent file. Id.
Documents are not “maintained” by an educational institution under FERPA unless the institution has control over the access and retention of the record. Simply because emails exist on a central server and in inboxes at some point does not classify those documents as education records. Id. If emails can be removed from the database in question simply by the account holder deleting the email from their inbox then emails that happen to remain on the server by no action of the educational institution are not maintained by the school. Id.; See Owasso, 534 U.S. at 433. “FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar,” not individual assignments or emails. Owasso, 534 U.S. at 435.
In this case, to locate the documents in question, at least regarding Group A, PCC searched all electronic files for the word “Loughner”. This search returned several duplicate documents and documents which were purely personal or subject to other exemptions. The fact that PCC conducted a system wide database search for a word or name indicates these documents were not saved in a central location on a permanent database which could be easily accessed after a request. Instead these documents were in individual inboxes or other locations and were simply stored on the database as a necessary component of providing email, which does not generate FERPA protection. See Tulare, 2009 WL 3126322 at *7 (finding the argument that educational institution “maintains” emails in inboxes and institution’s server fails). A key-word search that returns an unknown quantity and quality of documents, does not comport with the idea of records kept by a central custodian or records kept in a central location or database, and does not conform to the idea of records kept in a filing cabinet in the records room. See Owasso, 534 U.S. at 433, 435.
Accordingly, this Court finds that documents scattered throughout a database, only located via a key- word search, are not “maintained” under FERPA. The Court concludes, therefore, that the emails contained in Group A and the emails contained in Group L are not FERPA protected records. This Court further finds that
Victoria Robertson Law Clerk
Page 4 Date: May 17, 2011 Case No.: C20111954
the GROUP N documents are not at issue in these proceedings. The Court declines to address these documents as they are outside the purview of this litigation.
Conclusion IT IS ORDERED that PNI’s Complaint for Special Action Relief is hereby GRANTED.
IT IS FURTHER ORDERED that PCC must disclose to PNI all documents submitted for in camera review as GROUP A.
IT IS FURTHER ORDERED that, as to the documents submitted for in camera review as GROUP L, PCC must only disclose email documents to PNI at this time.
IT IS FURTHER ORDERED that PCC provide this Court further clarification regarding whether the non-email documents submitted for in camera review as GROUP L are privileged under FERPA. PCC is directed to resubmit only Group L non-email documents together with a privilege log providing clarification as to the classification and origin of the documents, how the documents were stored, and specifically what, if any, privilege PCC is asserting to the documents. PCC should remove transcripts, grades, and other conventionally protected personal information from Group L documents prior to resubmission to the Court, as PNI expressly exempted such documents from this litigation. Additionally, any documents created after Loughner was no longer a student at PCC, after October 10, 2010, should be removed from Group L as those documents are also outside the scope of this litigation.
IT IS FURTHER ORDERED that PCC shall file the above pleading and resubmit Group L non-email documents for further in camera review no later than ten [10] business days from the date of this ruling. PNI shall file their response to PCC’s pleading within ten [10] business days. PCC may reply to PNI’s response no later than five [5] business days thereafter. Parties are directed to email or fax their pleadings to opposing counsel to ensure their timely receipt. The Court will review the requested pleadings and documents and, if possible, rule upon the privilege or confidentiality issues without a hearing. The Court may, however, set the matter for a hearing thereafter if the Court deems it necessary.
Victoria Robertson Law Clerk
(ID: d87f1db3-7ae7-43ab-8dba-60033f2a216a)
Page 5 Date: May 17, 2011 Case No.: C20111954
cc: David J. Bodney, Esq. John C. Richardson, Esq.
Peter S. Kozinets, Esq. Sesaly Ona Stamps, Esq. Clerk of Court - Under Advisement Clerk


No comments:

Post a Comment

Post a Comment