At Issue: Wisconsin Open Records Law Versus FERPA

MacIver News Service | April 6, 2011

[Madison, Wisc…] The University of Wisconsin’s denial of certain email records to the Republican Party of Wisconsin shows just how far reaching the Family Educational Rights and Privacy Act (FERPA) is.

Many parents of college students are familiar with FERPA. It prevents them from checking up on their children’s grades, which can be very frustrating when the parents are the ones paying the tuition. However, the law apparently goes much further than that.

RPW sent an open records request to the University in March requesting all emails to and from Professor William Cronon that addressed the union protests in Madison and any possible recall election efforts. The university refused to release emails that fell within several categories. One of those categories was emails between Cronon and students.

“We are excluding records involving students because they are protected under FERPA,” UW-Madison Chanecllor Biddy Martin wrote in a public response to the records request. “We are excluding exchanges that fall outside the realm of the faculty member’s job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it.”

John Dowling, UW Senior Legal Counsel, said to release many of the emails the RPW requested would violate FERPA, which “requires the university to keep confidential all education records directly related to students.”

The MacIver News Service contacted the US Department of Education to clarify what information FERPA actually protects.

One agent contacted through the general information phone line said FERPA “only applies to information contained in a student’s official education record. If it is not contained in the official record, it is not protected by FERPA.”

However, David Thomas of the DOE press office later stated, “While many schools do have official or permanent files, FERPA doesn’t mention ‘official’ records or files. Rather, the definition of ‘education records’ is broadly defined to mean those records that are directly related to a student and maintained by an educational agency or institution, or a party acting for the agency or institution.”

Dowling told MNS that’s how he’s always interpreted FERPA.

“The term ‘records’ is very broad and covers just about everything, to include emails,” Dowling said.

Dowling pointed  to 34 CFR 99.3 in the Federal Code.

It defines education records as “those records that are directly related to a student and maintained by an educational agency or institute or by a party acting for the agency or institution.”