Tricky FERPA Issues in Wyoming: A Different Take

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An unfortunate event occurred in Wyoming.  The Wyoming Tribune Eagle, a newspaper in Wyoming, requested a report from Laramie County Community College (LCCC).

The report contained information on how the institution handled a “situation” on a college-sponsored trip to Costa Rica.  The president of the institution took part in the trip.

The institution denied access to a copy of the report because student names were included and therefore it would violate FERPA.

Then, from an anonymous source, the newspaper received documents regarding this Costa Rica situation.

A Wyoming court ruled that the newspaper may publish the information.

The question is whether the institution will get into trouble under FERPA because a newspaper discloses personally identifiable information about students.

Before getting to that question, there’s been plenty of criticism of LCCC. The Student Press Law Center criticized the school’s actions.  FIRE has criticized the institution.

Here’s the bottom line:

1) FERPA’s disclosure restrictions do apply to institutions only (except see the redisclosure restrictions below).

2) One incident isn’t going to make an institution lose federal funds, unlike what LCCC argued.  An institution must have a “policy or practice” of violating FERPA, even then it is highly unlikely.  No institution has ever lost federal funds as a result of violating FERPA.

3) It is unclear whether there even is a violation of FERPA.

Having said all that, while the court wrote that the parties appear to agree that LCCC didn’t improperly disclose the information, what if it turns out that the anonymous source was an institutional employee or agent?  It seems that’s a real possibility.  This isn’t to say that LCCC in any way knew or knows about the source of the disclosure—I don’t believe they do.  If the anonymous source was an employee or agent though, then the institution would have violated FERPA.  However, it still likely wouldn’t result in the loss of federal funds.

LCCC is simply trying to protect the confidentiality of the students.  It isn’t clear why the information couldn’t have been provided to the newspaper by redacting out student names.  I’d imagine this is something that was discussed, but I haven’t seen anything to support that.

There’s also one other FERPA issue at play.  If it turns out that an employee (or agent) of the institution is the anonymous source, then there are redisclosure limitations on the recipient of the information.  The recipient of the information may only disclose the information with prior written consent.

The problem though is whether this section applies when there’s been an improper disclosure.   That’s something that wasn’t addressed by the court.  Assuming that the section does apply,  the newspaper still wouldn’t be prevented from disclosing the information.  However, there are repercussions:

(e) If this Office {Family Policy Compliance Office] determines that a third party outside the educational agency or institution improperly rediscloses personally identifiable information from education records in violation of this section, or fails to provide the notification required under paragraph (b)(2) of this section, the educational agency or institution may not allow that third party access to personally identifiable information from education records for at least five years.

This would mean the newspaper, for five years, could receive nothing about students from the institution, not even innocent information, such as directory information (directory information is the type of information that is not considered harmful if disclosed).

As someone who’s a strong believer in transparency and open records, the newspaper still has an ethical obligation to respect student privacy even if FERPA doesn’t apply to them.  Receiving information in what appears to be a sleazy manner doesn’t justify publishing whatever they want, even if they can.

The Court echoed this point:

The documents contain very sensitive material and the Court would hope the Defendant [newspaper] and others will treat the documents with the respect contemplated by the CARE Team [a coordinating group of staff and faculty at LCCC] , but this Court is without authority to give such a desire the force of an order of this Court.

There’s also one other critical issue for LCCC and for all institutions.  What do you do to employees or agents that violate FERPA against your will (this is assuming that the source was an employee or agent)?  What steps can institutions take to proactively address this type of problem?

It may call for some clear direction right up front to employees, including guidance that disclosing information against the will of the institution could lead to immediate termination.

As can be seen by this Alert, the groups and media outlets making this issue seem real simple are way off-base.