How should public colleges and universities respond to requests under public records laws for information related to sexual misconduct investigations under Title IX and VAWA? On one hand, institutions are called to share information by public records laws, a desire for transparency, a need to discourage misconduct, and the public’s right to information. On the other hand, the Family Education Rights and Privacy Act (FERPA), Title IX, VAWA, and the Department of Education’s guidance call for protecting sexual misconduct records in the important interests of protecting safety, privacy, fairness, and encouraging reporting.
All states have some form of public records laws, which generally operate like the federal Freedom of Information Act (FOIA), whereby public governmental entities – including public colleges and universities – must provide information in response to a proper request. Most public records laws have exemptions for certain categories of information, including exceptions for information that is prohibited from disclosure by another law—such as FERPA—or that would result in an invasion of personal privacy. Relying on these exemptions, public colleges and universities may assert that they are not required to provide information related to sexual misconduct investigations. However, not all states extend these exceptions. Recent litigation and legislation indicate that even private institution police records may be subject to public records disclosure requirements.
Also, FERPA does not protect all information that should arguably be kept private in sexual misconduct investigations. FERPA excludes from the definition of protected “education records” certain documents, such as law enforcement unit records, that may contain sensitive information about sexual misconduct investigations. FERPA also allows disclosure—to anyone—of the final results of an institutional disciplinary proceeding regarding a crime of violence or “nonforcible sex offense” if the institution determines that a policy violation occurred.
In the face of gaps in state law and FERPA regarding the privacy of sexual misconduct investigations, the U.S. Department of Education’s Office for Civil Rights (OCR) has provided little recent guidance about how schools are expected to handle public records requests with FERPA and Title IX/VAWA implications. Guidance from 2004 emphasizes that, under FERPA, schools must take steps to protect privacy in these situations that, in some cases, reach beyond mere redaction of names and other directly-protected information to exclude facts that would otherwise identify students. Echoes of this guidance appear in OCR’s 2014 Questions and Answers on Title IX and Sexual Violence.
When responding to an open records law request, if a school errs on the side of not disclosing requested information pursuant to FERPA or other privacy laws or guidance, it could set itself up for potential litigation from the requesting entity for violating the public records laws—and it may ultimately be forced to disclose the information. If the school discloses the requested information, it could face potential litigation from the parties to the sexual misconduct matter for disclosing confidential or private information from education records. Schools find themselves in the challenging position of balancing the competing interests presented in these scenarios without clear direction from either side.
What This Means to You
Public colleges and universities face an increasing likelihood that they will, if they have not already, receive a request for records pursuant to a public records law for information related to sexual misconduct incidents and the school’s response.
Institutions should carefully consider how information and records related to sexual misconduct matters are classified and maintained on campus. Information and records that are clearly considered part of a student’s education record are more likely to be protected from disclosure. Information and records that are not maintained as part of a student’s education record (for example, by a school’s police or security department), are less likely to be protected– even though they contain the same information as that included in an education record. Schools should also consider developing protocols for responding to requests for records under public records laws in light of the privacy concerns tied to sexual misconduct investigations. They should be prepared to follow those protocols and stand by their decisions with the understanding that unwanted negative attention could follow both a decision to release requested information and a decision not to release requested information.