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Chicago Tribune v. University of Illinois

Concerning the Privacy of Education Records Under FERPA

EPIC filed an amicus brief in Chicago Tribune v. University of Illinois, a Seventh Circuit case that concerns the right of schools to protect student records in the face of Freedom of Information requests. EPIC's brief argues that Congress intended to protect student records, including admissions files, from unauthorized release and that Illinois' open government law must yield to the federal privacy law. The Seventh Circuit ultimately remanded the case to the district court with an order to dismiss the case for a lack of subject-matter jurisdiction.

Top News

  • Seventh Circuit Court Hears Oral Argument in Students' Privacy Case: The US Court of Appeals for the Seventh Circuit heard oral arguments today in Chicago Tribune v. University of Illinois. EPIC filed a "friend of the court" brief in the case, which concerns student privacy rights protected by the Family Educational Rights and Privacy Act ("FERPA"). EPIC's brief argued that Congress intended to protect student records, including admissions files, from unauthorized release and that Illinois' open government law must yield to the federal privacy law. In this case, the Tribune requested documents from the University of Illinois, under Illinois' open government law, while investigating alleged corruption in the admissions practices of the University. The University denied the Tribune's request, stating that the requested documents contained the personally identifiable information of students and were thereby protected by federal law. A lower federal court found that Illinois law required the documents to be released. The Depart of Justice also filed a brief in support of student privacy in the case. For more information, see EPIC: Chicago Tribune v. University of Illinois and EPIC: Student Privacy. (Sep. 30, 2011)
  • EPIC Urges Seventh Circuit to Protect Students' Privacy Rights: EPIC filed a "friend of the court" brief in Chicago Tribune v. University of Illinois, a case involving student privacy rights protected by the Family Educational Rights and Privacy Act ("FERPA"). EPIC's brief argues that Congress intended to protect student records, including admissions files, from unauthorized release and that Illinois' open government law must yield to the federal privacy law. While investigating alleged corruption in the admissions practices of the University of Illinois, the Tribune sought documents from the University under Illinois' open government law. The University denied the Tribune's request, stating that the requested documents contain the personally identifiable information of students and are thereby protected by federal law. A lower federal court found that Illinois law required the documents to be released.The Depart of Justice has also filed a brief in support of student privacy in the case. For more information, see EPIC: Chicago Tribune v. University of Illinois and EPIC: Student Privacy. (Jul. 21, 2011)

Background

The central issue in Chicago Tribune is whether the Family Educational Rights and Privacy Act (FERPA) barred the release of university admission records under Illinois’ Freedom of Information Act (FOIA).

The FOIA provides that “each public body shall make available to any person for inspection or copying all public records, except as otherwise stated in Section 7 of this Act” 5 Ill. Comp Stat. 140/3(a). Section 7 provides a list of exemptions from the general open access policy, the first of which prevents the release of “information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or state law.” 5 Ill. Comp. Stat. 140/7(1)(a).

FERPA provides that “no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein) of students without the written consent of their parents to any individual, agency or organization…” 20 U.S.C. § 1232g(b)(1).

In South Dakota v Dole, the Supreme Court held that under the Spending Clause, Congress can set conditions on expenditures even though it might be powerless to compel a state to comply under the enumerated powers in Article I. 483 U.S. 203 (1987).

In Bowie v Evanston Community School, the Supreme Court of Illinois recognized that Illinois public policy encourages the free flow of information and open access to official records. 538 N.E.2d 557, 559 (Ill. 1989).

In Gonzaga University v Doe, the Supreme Court held that FERPA's non-disclosure provisions do not create personally enforceable rights under § 1983. 536 U.S. 273 (2002).

In United States v Miami University, the Sixth Circuit granted the federal government an injunction preventing Miami University from releasing certain education records following a request under Ohio's FOIA, which contained a similar exemption to that of Illinois, for information "the release of which is prohibited by state or federal law." The Sixth Circuit viewed Spending Clause conditions as similar to those of contracts between state and federal government, allowing the federal government the right to enforce the state's promise to abide by FERPA conditions once it has accepted federal education funds. 294 F.3d 797 (6th Cir. 2002).

In Southern Illinoisan v Illinois Dept. of Public Health, the Supreme Court of Illinois acknowledged that although FOIA aims to protect personal privacy, there are exceptions to the general rule of disclosure that must be construed narrowly. 844 N.E.2d 1, 15 (Ill. 2006).

In May 2009, the Chicago Tribune published a series of articles entitled “Clout Goes to College” regarding University of Illinois admission practices, which involved an investigation into a list of applicants, which it labeled “Category I”, many of whom included the relatives of influential individuals who were alleged to have received preferential treatment throughout the admissions process. As a result, the Governor of Illinois convened a commission to study the admissions process.

The Chicago Tribune submitted a FOIA request, 5 Ill. Comp. Stat 140/1, seeking to inspect: the public records of each attending Category I applicant admitted, the names and addresses of said applicants’ parents, the identities of individuals who had made the request and become involved in the application process, and records concerning the identity of the University officials to whom the request was made, forwarded, and any documents reflecting changes in the application status as a result.

The University of Illinois denied the request, relying on the section 7(1)(a) exemption and taking the position that federal law, specifically FERPA, prohibited the release of the requested information. The Tribune responded with a letter appealing the denial to the University’s President, who responded by contending that FERPA prevented release of the records.

On January 27, 2010 the Tribune filed an action for declaratory relief seeking a declaration from the court that FERPA does not bar the release of the records in question. The parties filed cross-motions for summary judgment. The Tribune made four arguments, the third of which the court favored: that FERPA does not “prohibit” the release of education records, so the FOIA exemption relied upon by the University is inapplicable.

The opinion of the United States District Court, N.D. Illinois Eastern Division, was delivered on March 7, 2011. It granted the Tribune’s motion for summary judgment and denied that of the University, holding that FERPA does not prohibit the release of education records, and thus did not provide authority for the University to withhold its admission records requested under the FOIA.

The court held that section 7(1)(a) of FOIA applies only when a federal or state law “specifically prohibits” a certain disclosure, interpreting “prohibit” as “to forbid by authority” or “prevent from doing something”. It relied on Gonzaga as authority that FERPA does not forbid Illinois officials from taking action, but rather sets conditions on the receipt of federal funds. Miami University was cited, but distinguished, because that opinion included an important caveat limiting the obligation imposed by FERPA on schools accepting federal funds to federal government action to enforce FERPA.

Notice of appeal to the United States Court of Appeals (Seventh Circuit) was filed by the Board of Trustees of the University of Illinois on May 10, 2011.

EPIC's Interest in Chicago Tribune v. University of Illinois

EPIC supports the rights of students to keep their educational records confidential. EPIC recently submitted comments in opposition to the Department of Education’s proposed amendments to expand the exemptions available under the Family Educational Rights and Privacy Act of 1974 (FERPA). While EPIC also supports public disclosure of government records through the Freedom of Information Act (FOIA) in order to improve government accountability, EPIC has filed amicus briefs in numerous cases that balance protecting individual privacy with compelled government disclosure.

In FCC v. AT&T, 131 S.Ct. 1177 (2011), EPIC submitted an amicus brief urging the Court to reject AT&T’s personal privacy claim under FOIA exemption 7(C). The Supreme Court was considering whether AT&T could invoke personal privacy rights under FOIA to prevent disclosure of documents that the company had submitted to a federal agency. EPIC argued that while individuals have personal privacy interests in records held by federal agencies, the interpretation that corporations have personal privacy interests is inconsistent with the purpose of FOIA and common understandings of privacy. The Court found that FOIA exemption 7(C) did not protect the personal privacy of corporations.

In Doe v. Reed, 130 S.Ct. 2811 (2010), EPIC filed an amicus brief supporting the right to anonymous political speech and arguing that open government statutes should not compel disclosure of political referendum petition signatures. In making this argument, EPIC balanced the privacy interests of signatories with government disclosure requirements. The Supreme Court considered whether disclosure of these signatures was constitutional under a state Public Records Act. The Court held that, generally, the disclosure of signatures under the state open records law would not violate the First Amendment interests of the signatories because the disclosure requirements were sufficiently related to the state’s interest in ensuring the integrity of elections.

In Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010), EPIC filed an amicus brief in support of Ostegren’s non-commercial, re-publishing of state officials’ social security numbers that she obtained from publicly available documents on her website. EPIC argued that this was protected speech, as it was a means of advocating against the state’s improper dissemination of social security numbers. In deciding whether a Virginia informational privacy statute was unconstitutional as applied to Ostergren’s website, the 4th Circuit Court of Appeals found that the statute was not narrowly tailored to the state’s interest in protecting privacy since the state failed to redact the documents before making them publicly available online and that Ostergren’s re-publishing of the records was protected by the First Amendment.

In BATF v. City of Chicago, 537 U.S. 1229 (2003), EPIC’s amicus brief suggested that the government use technology to encode personal information before releasing it, thus reconciling public oversight of government activity with protection of individuals’ privacy rights. In that case, the Supreme Court was scheduled to consider whether the Bureau of Alcohol, Tobacco, and Firearms (BATF) could withhold records of individuals’ firearm purchases requested by the City of Chicago as part of another case challenging the marketing and distribution of firearms to city residents. EPIC argued that it was the intent of Congress to maximize both the public's access to government information and to safeguard personal privacy to the greatest extent feasible. The Supreme Court decided not to consider the case, and remanded it to the 7th Circuit, after Congress passed legislation that prohibits the BATF from spending agency funds on disclosure of records regarding firearm ownership.

Legal Documents

7th Circuit Court of Appeals

United States District Court for the Northern District of Illinois

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Related Cases

  • Bauer v. Kincaid, 759 F.Supp. 575 (W.D.Mo., 1991) (holding that because FERPA does not prohibit disclosure by law, it does not constitute a “record protected from disclosure by law” under exception 14 of the open records law).
  • United States v. Miami University, 294 F.3d 797, 803 (6th Cir. 2002) (reasoning that once a university accepts federal funding and the attached conditions, the school is prohibited from releasing the education records without consent).
  • Kibort v. Westrom, 862 N.E.2d 609 (Ill. App. Ct. 2007) (finding that a state election law that did not explicitly prohibit disclosure of ballots still barred disclosure since allowing access under FOIA would be inconsistent with the statute’s provisions).
  • Belanger v. Nashua, N.H. Sch. Dist., 865 F. Supp. 40, 46 (D.N.H. 1994) (distinguishing FERPA as not “merely a congressional preference” but a requirement that imposes a “mandatory obligation” on educational institutions).
  • E.W v. Moody, No. C06-5253, 2007 WL 445962, at *2 (W.D. Wash. 2007) (noting that FERPA’s basic protection is that schools that accept federal funding are “prohibited” from releasing student education records without consent).

Law Review Articles and Books

  • From the Ivory Tower to the Glass House: Access to De-Identified Public University Admission Records to Study Affirmative Action, Richard J. Peltz, 25 Harv. Blackletter L. J. 181 (2009).
  • FERPA Clear and Simple: The College Professional's Guide to Compliance, Clifford A. Ramirez (John Wiley & Sons 2009)

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