Student journalist sues OU for access to parking ticket information

The University of Oklahoma's claim that parking tickets issued to students are private educational records is being challenged in court by a former online editor for The Oklahoma Daily.
 
Joey Stipek is asking a Cleveland County judge to order OU officials to release all parking citations issued by the university.
 
Stipek's lawsuit, filed Friday, stems from OU's refusal to release electronic copies of parking citations issued to students in the spring 2012 semester. OU's open records officer, Rachel McCombs, claimed the information is confidential under the federal Family Educational Rights and Privacy Act, or FERPA, according to Stipek's lawsuit.
 
OU and Oklahoma State University officials have made that claim for years even though courts in other states have ruled otherwise.
 
In 1998, for example, the Maryland Court of Appeals unanimously ruled that FERPA "was not intended to preclude the release of any record simply because the record contained the name of a student." (Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))
 
The court reasoned:

The federal statute was obviously intended to keep private those aspects of a student's educational life that relate to academic matters or status as a student.
 
Nevertheless, in addition to protecting the privacy of students, Congress intended to prevent educational institutions from operating in secrecy.
 
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.
 
Universities could refuse to release information about criminal activity on campus if students were involved, claiming that this information constituted education records, thus keeping very important information from other students, their parents, public officials, and the public.
 
We hold that "education records" within the meaning of the Family Educational Rights and Privacy Act do not include records of parking tickets or correspondence between the NCAA and the University regarding a student-athlete accepting a loan to pay parking tickets.

The university's student newspaper had sought the records after learning that a basketball player had nearly 300 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.
 
In 2011, a North Carolina judge ruled that parking tickets issued to UNC athletes "are not education records protected by FERPA."
 
The "remote possibility" that repeated parking violations would result in disciplinary action "does not constitute a sufficient 'threat' to cloak every student with invisibility about the number of parking tickets he or she receives," the judge said.
 
(Similarly, the judge ruled that student phone numbers on UNC coaches' cell phone bills were public records, saying: "FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC. The telephone number is not part of the education record protected by FERPA.")
 
The N.C. judge's ruling was another example of courts telling universities that "FERPA is not to be applied in an absurd way to conceal information that is not educational," said Frank LoMonte, executive director of the Student Press Law Center.
 
LoMonte recently said OSU officials shouldn't just ignore those court rulings and should stop "relying on this unsustainable interpretation of FERPA that is inconsistent with the way other people read it and undermines the public interest."
 
If parking tickets are indeed educational records, LoMonte told The Daily O'Collegian, then the university is violating FERPA by placing them on windshields in public view.
 
"They certainly wouldn't take your report card and stick it under your windshield wiper and leave it on public display for anyone to see," LoMonte said.
 
Stipek had sought OU's parking tickets to determine if preferential treatment had been given to anyone, especially athletes.
 
After being denied access, Stipek asked for all non-student parking citations. But the university replied that it didn't have the technological capability to redact student information from the database, according to his petition.
 
Stipek's lawsuit was filed against McCombs and OU President David Boren. Stipek's attorney is Nicholas Harrison, who received FOI Oklahoma's 2012 Ben Blackstock Award because of his reporting for The Oklahoma Daily as a University of Oklahoma law school student.
 

 
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

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