Wednesday, May 5, 2010

OSU, OU officials refuse to disclose parking citations given to students, say tickets are educational records protected by FERPA

(This story was written by Elise Jenswold, a student in my reporting course this spring. It was published Tuesday in The Daily O'Collegian. Thank you to FOI Oklahoma members Bob Nelon and Mike Minnis for their time spent answering questions for the article. -- Joey Senat)

Oklahoma’s two major public universities will not disclose parking citation records containing student names, claiming they are educational records protected from disclosure by a federal privacy law.

But three open records experts said they believe the records are public under the state’s Open Records Act because committing a parking violation has nothing to do with a student’s education.

A Maryland appellate court used the same reasoning in 1997 when it unanimously ruled that the same records at the University of Maryland were open under that state’s public records law. (
Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))

The Maryland Court of Appeals said the Family Educational Rights and Privacy Act was not intended “to preclude the release of any record simply because the record contained the name of a student.”

“The federal statute was obviously intended to keep private those aspects of a student’s educational life that relate to academic status as a student,” the court said. “Prohibiting disclosure of any document containing a student’s name would allow universities to operate in secret, which would be contrary to one of the policies behind the Family Educational Rights and Privacy Act.”

The university’s student newspaper, The Diamondback, sought the records after learning that a basketball player had 285 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.

Oklahoma State University issued more than 18,029 parking tickets to students, faculty and visitors from Aug. 1 to April 9, according to university records.

OSU officials took 14 days to respond to a reporter’s request for the database of student parking violations. Ultimately, the university refused to disclose the names of students who received citations and provided only the types of violations that occurred in campus parking lots.

OSU attorney Doug Price said the individual records of citations given to students are educational records that must be kept confidential under FERPA.

University of Oklahoma officials also cited student privacy when they denied access to that school’s database of parking citations issued to students.

“I don’t believe I will be able to release student names. That has to be against a privacy right,” said Kris Glenn, a marketing and public relations specialist for OU’s parking and transit department.

OU’s open records administrator offered to provide “numbers and statistics, but no names because of student’s privacy.” Rachel McCombs said OU records containing student information could not be disclosed without a release form signed by the student.

FERPA defines educational records as school documents that “contain information directly related to a student.”

But Oklahoma City attorneys Bob Nelon and Michael Minnis said they don’t believe the parking citations are educational records because they are not related to student education.

FERPA excludes “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.”

The U.S. Department of Education has defined enforcement units as including commissioned officers or non-commissioned security guards authorized or designated to enforce state and local laws, or to “maintain the physical security and safety” of the campus.

Price said OSU’s parking citations “are processed through an administrative process and are not created for a ‘law enforcement’ purpose.”

An attorney for the Student Press Law Center, however, disagreed with Price’s interpretation of the statute.

“The definition of law enforcement unit is any part of the school that is officially authorized to enforce any state, local or federal law, or to refer people to proper authorities for violations of those laws,” said Adam Goldstein. “It doesn’t matter who is writing these tickets —if the Dean of Students is writing parking tickets, the Dean’s office is a law enforcement unit under the regulations and can’t cite FERPA to avoid disclosing law enforcement records.”

A 1998 written opinion by the Kansas attorney general drew a distinction between parking citations enforceable as misdemeanors and those enforceable only as administrative policies.

“If a university's parking rules and policies are legally enforceable as a misdemeanor, then the parking tickets may be exempt from FERPA as law enforcement records and thus not subject to its confidentiality requirements,” the opinion stated.

“Alternately, if the parking tickets are only enforceable on an administrative level within the university, they are more analogous to disciplinary records, which we believe are ‘education records’ which are generally closed by FERPA,” the opinion stated.

According to OSU policies, “Parking rules and regulations are enforced on campus by OSU Police Officers and OSU Parking Cadets.” Students, faculty, staff and campus visitors may appeal their citations.

“Visitors that receive a parking citation for the first time may get that ticket waived,” the policy states. “However, excessive violations or violations for parking in reserved or restricted parking areas, such as disability or spaces signed for specific vehicles will be enforced.”

OU’s parking regulations are enforced “primarily by Parking Control personnel of the Parking Office, who wear black and tan uniforms.”

“University parking citations are adjudicated wholly within the University as an administrative process,” according to OU policy.

OSU’s Doug Price also contended that even if the records were considered law enforcement records exempted from FERPA, they would not be subject to the state Open Records Act because they are not explicitly listed in the statute as records that police must provide to the public.

Nelon and Minnis, each of whom has won open records cases, disagreed with Price’s interpretation.

Nelon said that while the term "citation" is not used, “a citation presumably includes the kinds of information identified” in the list.

“Parking citations ought to be made available as public records,” said Nelon.

Subsequent media coverage:

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.