OSU officials drop proposed policy forcing faculty lawsuits for personnel records

Oklahoma State University won't be adopting the University of Oklahoma's policy of forcing faculty to sue for personnel records guaranteed to them by the state Open Records Act.
 
OSU officials dropped the proposed policy change on peer-review letters last week after the chairman of its governing board told them he opposed it because it would violate the Open Records Act.
 
Just like OU's current policy, the proposed change would have forced OSU faculty to sue their school to obtain un-redacted copies of letters written by professors at other universities that OSU officials use in deciding whether to grant tenure and promotions to faculty.
 
Under OSU's current policy, faculty members may obtain the original peer-review letters if they chose early in the process not to waive their right to them under the Open Records Act. (Reappointment, Promotion and Tenure Process for Ranked Faculty, 2.2(b)(7)(2006))
 
But the proposed change would have dropped the waiver option and provided faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."
 
The university would have provided the faculty member with the original letters "only when required to do so by a legal proceeding."
 
OSU officials had wanted the new policy approved by the Oklahoma A&M Board of Regents on Friday. But Tuesday, OSU General Counsel Gary Clark told President Burns Hargis and Provost Robert Sternberg via email that regents Chairman Andy Lester "says that he would oppose the change … as violating the Open Records law."
 
"We need to pull the item from the agenda," Clark wrote.
 
Sternberg relayed that news to Faculty Council officers via email, adding, "It sounds like the new proposed procedure with redacted letters is dead.
 
"I will leave it to my successors to figure out how to move forward," said Sternberg, who is leaving OSU to become president of the University of Wyoming.
 
Lester's rejection of the change seemed to perplex Sternberg, in part because OU Provost Nancy L. Mergler had told Sternberg that OU has used the same policy for years.
 
"I thought that OU has used an analogous procedure for years with no problem, but perhaps I misunderstand what they do," Sternberg wrote.
 
No, he hadn't misunderstood. Under OU's policy, peer-review letters "solicited in confidence or sent with the expectation of confidentiality shall be deemed confidential and unavailable to the employee unless otherwise ordered by a court of law." (Access to Personnel File Policy, Faculty Handbook, 5.34.4)
 
Put another way by an OU official:
 
"The way I think Legal articulates our position is, we recognize that we have to give them up unredacted, but we won’t unless you sue us to get them," explained OU Associate Provost Gregory M. Heiser in an email that Mergler forwarded to Sternberg in October 2011.
 
Sternberg had asked Mergler whether OU's peer-review letters were open "or do you have a way around this?"
 
She told Sternberg that "twice in the past 16 years [OU] had to produce redacted letters when there was a faculty appeal of the tenure recommendation and the faculty member hired independent counsel."
 
However, Mergler also told Sternberg, "I am sure with the current tea party folks so intent on open records ……that we will be getting a more aggressive challenge sometime soon."
 
OU should expect challenges to a policy that forces faculty members to sue for their personnel records.
 
Such a policy violates the state Open Records Act, as I explained to the Faculty Council, with Hargis and Sternberg attending, in March 2012 and reiterated in The Daily O'Collegian in February.
 
The Open Records Act grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
 
A 1986 Oklahoma attorney general opinion also supports the right of faculty members to obtain un-redacted peer-review letters. (1986 OK AG 39)
 
The opinion said personnel investigations are part of personnel files and that Oklahoma State Bureau of Investigation employees were entitled to review any materials gathered in the background investigation of them. (¶ 3)
 
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of employees unless the informant objected and then the agency determined on a case-by-case basis that releasing the name would damage the confidential informant. (¶ 16)
 
But OSU officials wanted to create – and OU has – a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions. Those authors – who OSU policy says "should be leading scholars in their disciplines" – would be hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
 
Not telling faculty that they have a right to the peer-review letters doesn't mean the right is nonexistent. It does, however, say quite a bit about the ethics and integrity of an institution's leaders.
 
Fortunately, Lester was willing to respect the statutory right of OSU faculty members to access their personnel files without having to sue the school.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

OSU winner of Black Hole Award from national SPJ

The national Society of Professional Journalists has selected Oklahoma State University as the winner of its third-annual Black Hole Award.
 
Oklahoma State was nominated by the Student Press Law Center for, among other things, ignoring the Clery Act in not notifying students, the public or its own police department that university officials were aware of the presence of an accused serial sex offender on campus. When asked why, OSU officials cited FERPA confidentiality requirements.
 
SPJ FOI Committee member Don Meyers said:

Using a federal education privacy law that pertains to grades to keep the campus in the dark about a sex offender who appears to be predatory is the textbook definition of egregious. If a municipal police force had pulled that shenanigan, they'd be in trouble on multiple fronts. FERPA was not meant to be a "Harry Potter"-like invisibility cloak that could turn any record that names a student into a protected document.”

(The Board of Regents for Oklahoma State University and the OSU administration were given FOI Oklahoma's Black Hole Award in 2009 for "routinely conducting the public’s business outside the public’s view. Regents secretly discuss proposals among themselves and with college officials prior to public meetings.”
 
OSU administrators were faulted for claiming public business conducted on personal smart phones is secret, in contradiction to interpretations by attorneys general in several states. An Oklahoma attorney general opinion later said public business is public regardless of whether the government or the official owns the device used to create or maintain the record.)
 
For information on SPJ's Black Hole Award, contact Linda Petersen, chairman of the national SPJ FOI Committee, at 801-554-7513.
 

 

Proposed OSU policy would force faculty lawsuits for personnel documents guaranteed by Open Records Act

A proposed policy change would force Oklahoma State University faculty to sue the school to obtain un-redacted copies of certain personnel records even though they are entitled to the complete documents by the Open Records Act.
 
At issue is faculty member access to original peer-review letters, written by professors at other universities, that OSU officials use in deciding whether to grant tenure and promotions to faculty.
 
Under OSU's current policy, faculty members may obtain the original letters if they chose not to waive their right to them under the Open Records Act.
 
But the proposed change would drop the waiver option and provide faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."
 
"The University will provide the candidate with copies of the original external letters, which reveal the identities of the letter writers, only when required to do so by a legal proceeding," the RTP Task Force recommended in November.
 
(I note that in lieu of an expensive lawsuit, faculty would be entitled under the Open Records Act to file a criminal complaint against the individual university official refusing to provide a record in violation of the statute. The maximum punishment is a $500 fine and one year in the county jail.)
 
The Faculty Council will consider the proposal on Tuesday. The Board of Regents would have the final say-so.
 
The impetus for change came in fall 2011 when OSU Provost Robert Sternberg began advocating a policy of keeping the entire peer-review letter from faculty. Some Faculty Council members consider the current proposal a compromise.
 
But it's one that flies in the face of the state Open Records Act, which grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
 
The right of faculty members to obtain the un-redacted peer-review letters also is supported by a 1986 Oklahoma attorney general opinion that said, "Personnel investigations such as background investigations are necessarily deemed a part of the personnel file." (1986 OK AG 39, ¶ 3)
 
The attorney general said employees of the Oklahoma State Bureau of Investigation were entitled to review as a part of their personnel files any materials gathered in the background investigation of them.
 
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of its employees unless the informant objected and then the agency determined on a case-by-case basis that the release of that name would damage the confidential informant. (¶ 16)
 
Oklahoma attorney general opinions are binding upon state agencies such as OSU.
 
Yet, the RTP proposal would create a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions at OSU. And on a case-by-case basis, those authors – who the policy says "should be leading scholars in their disciplines" – would seem hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
 
Oklahoma's Supreme Court and attorneys general have emphasized repeatedly that "disclosure of information is to be favored over finding an exemption" and that an agency's policies and procedures "must be in the letter and spirit of the Open Records Act."
 
But OSU would violate those principles and state law by adopting a policy that requires faculty members to file a lawsuit (or a criminal complaint) to obtain records to which they are entitled.
 
Individual faculty members are free to waive their right to those un-redacted letters. However, the university may not take away that right from all faculty members or create barriers such as requiring lawsuits to obtain records guaranteed by statute.
 
I am asking that the Faculty Committee oppose the proposed policy change and respect the rights granted to their colleagues by state legislators.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

OSU officials say sex video crime not covered by Clery Act, but federal guidelines indicate otherwise

Oklahoma State University officials are saying the Clery Act's privacy protection for victims doesn't apply if the federal statute doesn't require the school to report the crime as an annual statistic.
 
OSU spokesman Gary Shutt told reporters on Friday night that the school was permitted to include a female student's name in a police report because her allegation of a secretly recorded sex-video wasn't covered by the Clery Act.
 
"This incident did not fall under Clery, it was not a sexual assault or any other incident that falls under the Clery Act," Shutt told News 9 in Oklahoma City. "In cases that are not a violent crime, the reporting party information is made available. This was not a case that involved bodily harm or was violent."
 
He similarly told The Daily O'Collegian that the name "did not fall under Clery because it was not an assault or other Clery-covered incident."
 
OSU police Capt. Richard Atkins made the same claim, telling the newspaper:

It's an invasion of privacy crime, not a sex offense under the Clery Act, so it is not a Clery-reportable crime. It is classified in Clery logs as another state law violation.

Atkins and Shutt are correct that the federal statute lists certain crimes for which annual statistics must be reported. Those statistics must not include the names of victims and suspects.
 
However, the federal statute also requires the university to keep and make public a log of all crimes reported to campus police.
 
From the U.S. Department of Education’s 2011 Handbook for Campus Safety and Security Reporting:

The purpose of the daily crime log is to record criminal incidents and alleged criminal incidents that are reported to the campus police or security department. For example, if a student tells your security office that he lost his wallet in the parking lot behind a dorm, it is not a criminal incident, and you aren’t required to record it in the log. However, if a student tells your security office that his wallet was stolen from his dorm room, this is an alleged criminal incident which must be recorded in the log. (p. 90)
 
How the Crime Log Differs From Other Campus Safety and Security Disclosures
 
The crime log differs from other disclosure requirements in some important ways:

• Crime log entries include all crimes reported to the campus police or security department for the required geographic locations, not just Clery Act crimes. (emphasis included)
• The crime log discloses specific information about criminal incidents, not crime statistics. (p. 91)

The OSU female student reported a crime. It must be in the crime log. So it does fall under the Clery Act.
 
And the federal handbook says victim names must be redacted from the crime log available to the public.

Many institutions are also required by state law to maintain a log. If your institution maintains such a log, you may use it for your daily crime log as well, providing it meets all Clery Act requirements. However, if the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws. (p. 90)

Oklahoma's Open Records Act doesn't distinguish between "crime logs" and "incident reports."
 
Moreover, as I noted Friday, it seems contradictory for the Clery Act to supersede state laws on "crime logs" in order to prohibit the release of the victim's name by the university but not to override state laws on "incident reports" and thus allow the release of the name by the university.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

Did OSU violate federal law by including victim's name in report on alleged sex video?

Oklahoma State University police are investigating a female student's complaint that her ex-boyfriend had secretly videotaped them having sex in October in an on-campus apartment that the student newspaper says is a football player's residence.
 
OSU officials redacted the ex-boyfriend's name and other identifying information from the report released to the news media.
 
The female student's name, address, date of birth and phone number were included in the report released to the news media.
 
OSU spokesman Gary Shutt defended the decision to redact the suspect's information but leave in the woman's, saying the university was required to by the state Open Records Act.
 
"The reporting party is public information; suspects and witnesses are not until charges have been filed," Shutt wrote to News On 6 in a Thursday email.
 
Shutt didn't cite a specific statutory provision requiring suspect names to be redacted from police reports or one requiring complainant names to be included.
 
Under the Open Records Act, the public is entitled to a "chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer and a brief summary of what occurred.” (OKLA. STAT. tit. 51, § 24A.8(A)(3))
 
Typically, I would agree that the names and identifying information for both complainants and suspects should be included in police reports.
 
However, OSU also is subject to the federal Clery Act, which requires all colleges and universities that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection.
 
The federal statute prohibits schools from identifying victims in the crime log.
 
As a U.S. Department of Education 2011 handbook explains:

Many institutions are also required by state law to maintain a log. If your institution maintains such a log, you may use it for your daily crime log as well, providing it meets all Clery Act requirements. However, if the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws.” (p. 90)

Oklahoma's Open Records Act doesn't distinguish between "crime logs" and "incident reports."
 
As state attorney general, Drew Edmondson had emphasized that access to law enforcement information does not depend on the record title used by the agency.
 
"The department doesn't have to call it a jail register. If it is a jail register, then it's a public record," Edmondson said in a police training video. "They don’t have to call it a radio log. If they keep a log of radio traffic, then it's a public record."
 
Bottom line: It seems contradictory for the Clery Act to supersede state laws on "crime logs" in order to prohibit the release of the victim's name by the university but not to override state laws on "incident reports" and thus allow the release of the name by the university.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

OSU president refuses to release Chesapeake Energy-related emails, raising questions about his compliance with university's email policies, state law

OSU President Burns Hargis won't release emails on his university account that are related to his job as a member of the Chesapeake Energy Board of Directors, with officials telling The Daily O'Collegian and The Wall Street Journal that the messages are private under the state Open Records Act.
 
But that refusal raises questions about Hargis' compliance with OSU policies (and state law) barring the use of the university's computer system for commercial purposes.
 
Hargis told The Daily O'Collegian that he didn't violate the policy. But as the newspaper pointed out today, Hargis' refusal to provide copies "makes verification impossible."
 
A government ethicist told the newspaper that not releasing the emails raises a "red flag" indicating a potential conflict of interest between Hargis' jobs as OSU president and as a Chesapeake director for which he was paid a little more than $560,000 in 2011.
 
"This is what I call serving two masters," said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
 
In May, a reporter for The Wall Street Journal requested Hargis' emails related to Chesapeake Energy Corp., apparently hoping they would shed light on operations by the nation's second-largest natural gas producer.
 
Chesapeake Energy's business practices have been under scrutiny since Reuters reported in April that CEO Aubrey McClendon had taken out up to $1.1 billion in unreported loans by using his stake in each of the company's wells as collateral.
 
OSU officials denied the reporter's request, saying that none of the 758 emails involved "the transaction of public business, the expenditure of public funds or the administration of public property."
 
The Daily O'Collegian made the same request in September. Same response.
 
Users of OSU's email services are put on notice "that under the Oklahoma Open Records Act all records that are created by, received by, under the authority of, or coming into the custody, control, or possession of the University or University officials presumptively are public records.
 
"Such records include messages stored in an electronic or magnetic format. All e-mail communications, therefore, unless subject to a specific statutory privilege, are subject to production under the Oklahoma Open Records Act and, when relevant, to discovery in civil litigation." (Use of Electronic Mail (Revised) (2002))
 
But OSU officials point to a 2001 attorney general opinion that said an email between government employees making lunch plans – if such use is permitted by the agency – generally would not be considered a public record because it would not be "in connection with public business, spending public money or administering public property." (2001 OK AG 46, ¶ 5 n.2)
 
So the questions are whether OSU policies permit using university email for Chesapeake Energy business and whether Hargis did so.
 
"No" is the answer to the first question.
 
OSU policies limit the use of email to furthering "the teaching, research, service, and extension goals and mission of the University." (Use of Electronic Mail (Revised) (2002))
 
"The use of university computing systems for commercial purposes is strictly forbidden," OSU's Use of Electronic Mail policy states. "The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
 
Another policy states the university's "computing facilities, services, and networks may not be used in connection with compensated outside work for the benefit of organizations unrelated to the University except in connection with scholarly pursuits (such as faculty publishing activities) in accordance with the University consulting policy or the policy governing Access by External Entities to University Technology Resources, or in a purely incidental way.
 
"State law generally prohibits the use of University computing and network facilities for personal gain or profit, and use of computing resources for unauthorized commercial purposes, unauthorized personal gain, or any illegal activities is prohibited." (Appropriate Computer Use (1997))
 
The answer to the second question -- whether Hargis violated the policies (and state law) -- isn't clear.
 
Hargis told The Daily O'Collegian that he normally conducts Chesapeake business on his personal Gmail account and that he cannot control the email sent to his OSU account.
 
But he also refused to disclose the content of his OSU emails related to Chesapeake.
 
"If I'm not going to release the emails, I'm probably not going to talk about what they say," Hargis told The Daily O'Collegian.
 
Well, if they're only the equivalent of Hargis making lunch plans with Chesapeake officials, he would be better served by releasing the records.
 
Otherwise, relying upon a loophole in the Open Records Act raises suspicions that Hargis doesn't want to reveal the business of a for-profit corporation that was conducted over a taxpayer-funded email system in violation of university policy and possibly state law.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

N.C. judge: Parking tickets issued to state university students aren't education records protected by FERPA

A North Carolina judge on Tuesday ruled that parking tickets issued to UNC athletes are not education records protected by a federal student privacy law, the Student Press Law Center reports.

Why does this matter in Oklahoma?

Because a year ago, officials of Oklahoma State University and the University of Oklahoma refused to release names of ticket recipients, saying disclosure would violate the Family Educational Rights and Privacy Act.

OSU and OU officials argued that the parking citations are not created for law enforcement purposes, which would make them public under FERPA. Instead, the tickets are processed administratively and therefore, officials contended, are education records protected by FERPA.

University of North Carolina officials apparently made the same argument. But the North Carolina judge didn't buy it, saying:

The parking tickets issued by UNC Public Safety, if any, to 11 players are not education records protected by FERPA.

While section 6-3 of Article VI, Parking Control of the UNC Ordinance relating to parking on the campus of UNC permits, after repeated offenses, may result in referral to an appropriate agency for disciplinary action, the receipt of a parking ticket, in and of itself, is not subject to disciplinary action and thus, is not protected educational information under FERPA.

If a parking scofflaw were to reach the repeated, repeated stage and was referred to disciplinary action, such disciplinary action would be covered under FERPA.

However, this remote possibility does not constitute a sufficient "threat" to cloak every student with invisibility about the number of parking tickets he or she receives. Parking tickets are subject to civil not criminal penalties.

UNC will have 30 days to appeal after the judge issues a formal written order, the SPLC said.

SPLC Executive Director Frank LoMonte said the decision is another indication from courts that "FERPA is to be applied in a common sense manner that recognizes the importance of disclosure and transparency."

"Court after court has told schools that FERPA is not to be applied in an absurd way to conceal information that is not educational and this is yet another affirmation that FERPA can't be abused to conceal newsworthy and non-confidential information," LoMonte said.

Unfortunately, OSU and OU officials aren't likely to release their parking citation information based on anything short of a clarification by the U.S. Department of Education or an Oklahoma court order.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

National education reporter questions claim by OSU, OU that FERPA prohibits release of campus parking ticket data

Claims by two Oklahoma universities that releasing campus parking ticket data would violate student privacy laws were questioned by a top education reporter at a recent national conference.

Oklahoma State University and the University of Oklahoma last spring both refused requests to release parking ticket data. OSU alone issued more than 18,000 tickets from Aug. 1, 2009, to April 9, 2010, The Daily O'Collegian reported.

Officials for OSU and OU say releasing names of ticket recipients would violate the Family Educational Rights and Privacy Act, a federal statute passed to protect specific student records, such as grades.

“I don’t see how that argument could ever stand up,” said Kathryn Masterson, a reporter for The Chronicle of Higher Education.

Masterson made her comments during a panel discussion on higher education at the Investigative Reporters and Editors national conference in June. More than 800 journalists attended.

“My question might be why? Are they pulling in more money from parking tickets?” Masterson asked.

The universities made the argument in response to a request by a student journalist at Oklahoma State University.

Universities that use FERPA to deny access to campus parking ticket information were called “obstructionist” by the Student Press Law Center.

FERPA is one of the most widely used --- and abused --- excuses for universities seeking to withhold records that would otherwise be public under state sunshine laws. Courts have repeatedly struck down such broad interpretations.

“And yet colleges persist in defining any piece of paper in their possession as an ‘educational record’ when nondisclosure suits their purposes,” the SPLC said in a press release last May.

Universities have even used FERPA to refuse public access to college athletic departments’ airplane passenger manifests and complimentary ticket lists, a 2009 report by The Columbus Dispatch showed. The newspaper also showed that FERPA has been used to block parents from getting life-saving information about their own children’s medical conditions.

In another case, a Wisconsin university provided an “almost completely erased” tape recording of a university committee meeting to a campus newspaper. The university argued the voices of students at the public meeting are shielded by FERPA, the SPLC reported.

Northwestern Oklahoma State University's claim in June that FERPA prohibits it from disclosing which students receive scholarships funded by Alva's sales taxes is another example of why the statute is "broken," said the SPLC executive director.

Former U.S. Sen. James L. Buckley of New York, the primary FERPA author, has said the law “needs to be revamped” because of abuses by colleges and universities.


Ryan McNeill
Computer-Assisted Reporting Editor
Dallas Morning News

OU, OSU public records procedures seem to violate AG's open records opinion

All public records requests to OSU and OU are funneled through one office on each campus even though a 2005 attorney general opinion requires that government documents be made available where they "are located in the ordinary course of business."

OU's open records office includes one records clerk and an assistant, The Oklahoman recently noted.

OU General Counsel Anil Golahalli told the newspaper that sending the more than 3,000 records requests a year through one person is efficient. He said OU officials take one or two days to respond to a basic records request.

At OSU, records requests are funneled through university spokesman Gary Shutt’s office.

"The law allows us to handle and develop a process for open records that we think makes sense for our organization,” Shutt told The Oklahoman. "It’s perfectly within our legal right.”

But in 2005, state Attorney General Drew Edmondson said, “If a public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business. (2005 OK AG 3, ¶ 10)

“The Act does not expressly address at what office location records must be maintained and made available to the public if a public body has more than one office location," said Edmondson.

"It is our opinion that the ‘prompt, reasonable access’ to records that the public must be provided under the Act indicates the Legislature’s intent that the public body's records shall be maintained and available at the office where the records are located in the ordinary course of business,” he reasoned. (Id. ¶ 8)

In contrast, the universities' practices create a bottleneck for requests and can result in much-delayed access.

This past spring, for example, an OSU reporting student waited nine days for Shutt's office to provide a document. Even though the record was in the hands of the person being interviewed, the student was told she would have to go through Shutt's office to obtain the information.

When the student returned to Shutt's office for a third time to ask about the request, she pointed out the requirement that records be made available at the location where they are kept and in a prompt manner.

She was told by Carrie Hulsey-Greene, OSU associate director of communication services, “The problem is, we can’t expect everyone to stop doing their regular jobs just to do open records.”

Shutt agreed that responding to records requests is part of the job but told the student, “If you are doing three other things during the day, [the request] might not jump to the top, depending on what their supervisor is having them do.

“Our intent is to make the records available as soon as possible,” Shutt said. “Clearly, it should not have taken as long as it did.”

Oklahoma public agencies and officials do have a “duty” to provide public records to the public.

“The purpose of the Act is ‘to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power,'" said Edmondson in 2005. (Id. ¶ 4)

"To fulfill this purpose the Act imposes a duty on a public body to ‘provide prompt, reasonable access to its records’ and make a person available to release records during the public body’s regular business hours,” he said.

Edmondson has defined "prompt" as "only the time to locate and compile the records." (1999 OK AG 58, ¶ 15)

That is best accomplished by the person who already has the document in hand at the time of the request.

Public bodies may establish procedures for access to public records but “such rules must be consistent with the letter and spirit of the Open Records Act,” Edmondson said in 1999. (1999 OK AG 55, ¶ 25)

OSU's and OU's procedures for records requests are at best the antithesis of that spirit and at worst a violation of Edmondson's binding opinion.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Newspaper criticizes OU, OSU for keeping student parking tickets secret

OU and OSU officials are defying common sense by claiming that parking tickets issued to students are confidential educational records, The Oklahoman said in an editorial Saturday.

"The federal law was designed to protect students’ academic records, not such things as tickets issued to students for parking in the faculty lot," the newspaper said.

The universities refused to disclose the tickets to a student in my reporting course and later to a reporter for The Oklahoman. The student's story was published in The Daily O'Collegian and on this blog.

OSU and OU officials contend the tickets are confidential under the Family Educational Rights and Privacy Act. Open government experts disagree with that interpretation of the federal statute.

In its editorial, The Oklahoman called on federal education officials "to clean up and simplify the law."

"Meantime, the application of common sense is in order," the newspaper said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

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:

• Oklahoma universities' parking ticket secrecy stirs questions, by Bryan Dean, The Oklahoman, 5.9.10.
• Are students' parking tickets public records? by Jenna Johnson, Campus Overload Blog, The Washington Post, 5.10.10.
• Common sense needed, Editorial, The Oklahoman, 5.15.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism