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FERPA Does Not Shield Student Records From FOIA Request

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March 16, 2011

By Jackie Wernz

A federal judge in Chicago recently ruled that the University of Illinois could not rely on the Federal Educational Rights and Privacy Act of 1974 (FERPA) to shield its “clout list” from release under the Illinois Freedom of Information Act (FOIA).

In Chicago Tribune Company v. University of Illinois, the Chicago Tribune sought records relating to students on a list of applicants, including relatives of influential individuals who appeared to have received preferential treatment from the University during the admissions process.  For applicants on the so-called clout list, the Tribune sought the names and addresses of the applicants’ parents, the identity of people who made requests or became involved in the students’ applications, records about the identity of the University officials to whom such requests were forwarded, and any documents that showed changes in an applicant’s status as a result of those requests.

The University denied the FOIA request, in part because it asserted that the documents were “specifically prohibited from disclosure by federal . . . law” and were thus subject to a FOIA exemption. The University argued that FERPA prohibited the release of the information because it states that no funds will be made available to an educational institution that has a policy or practice of permitting the release of education records or personally identifiable information contained therein without the written consent of students or parents.

Federal Judge Joan Gottschall of the Northern District of Illinois disagreed with the University’s interpretation of FERPA. The opinion pointed out that the relevant FOIA exemption applies only when a federal or state law “specifically prohibit[s]” a certain disclosure. FERPA does not prohibit colleges and universities from acting. Instead, it simply sets certain conditions on the receipt of federal funds. Because the University could reject the funds and not comply with FERPA, the law cannot be said to “prohibit” anything.

The court’s ruling explicitly was quite narrow, and left open the possibility that the University and other schools can rely on other exemptions to protect student records. Moreover, although schools should be wary of relying on FERPA to deny FOIA requests in the future, the decision does not impact the ability of public K-12 schools to rely on the Illinois School Student Records Act, which more clearly prohibits the release of student records by covered entities. 

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