NWOSU asks federal education officials if names of discretionary scholarship recipients are public information

Northwestern Oklahoma State University will ask federal education officials if the names of students receiving scholarships funded by Alva sales taxes may be disclosed to the public, NWOSU President Janet Cunningham said in a recent newspaper column.

But the answer might already be "no."

In May 2009, the Education Department advised the University of Central Arkansas at Conway "not to release the names of who got millions of dollars in publicly funded, no-criteria, discretionary scholarships under the UCA president’s auspices," the Arkansas Democrat-Gazette reported.

After the federal official who wrote the letter was fired in February, the newspaper appealed his decision regarding UCA's now-discontinued Presidential Discretionary Scholarship Program.

But in a recent letter, the Education Department's compliance office "stood by its old decision," reporter Debra Hale-Shelton told the FOI Oklahoma Blog.

However, she said, the office "also suggested that certain scholarships not related to financial aid needs were exempt."

"Still, UCA refused to release the information," Hale-Shelton said.

She had asked UCA for the names after learning that "some of the people on that list got these scholarships because they were friends or children of friends of the former president, Lu Hardin," Hale-Shelton told the Student Press Law Center in 2009.

"[The scholarships] were political favors," she said.

In an article this past February, Hale-Shelton noted that "the very thing that made the presidential discretionary scholarships an issue was one reason" the federal official said UCA should not disclose the names.

The then-director of the Family Policy Compliance Office had cited the lack of published criteria as a reason for not disclosing which students received the scholarships.

Some universities include scholarships in the definition of honors and awards received by students, which the Family Educational Rights and Privacy Act lets schools disclose unless the student has objected in writing.

But the exception would not apply “in situations where the basis for the scholarship is undefined or could be need-based or related to a student’s financial need,” wrote then-Director Paul Gammill.

“Because the release of this type of scholarship information in personally identifiable form could be potentially harmful or an invasion of privacy, FERPA would preclude the university from disclosing this information without the prior written consent of the recipient,” Gammill wrote.

UCA's scholarships seem similar to those awarded by NWOSU.

NWOSU officials in June refused to disclose who got scholarships funded by the Alva Economic Development Incentive Sales Tax Grant this past spring. The school had made the information public for 10 years under an agreement with the city.

But the general counsel for the Regional University System of Oklahoma told the school that disclosing the names violates FERPA, said NWOSU's president in a column published June 27 in the Alva Review-Courier.

NWOSU distributed $214,000 from the scholarship fund for the spring semester. The money comes from a 1999 city sales tax approved by Alva voters for economic development.

"Half was dedicated to Northwestern to create an incentive for students to attend Northwestern and establish a permanent or part-time residence in Alva," Cunningham wrote in her column. "The charge to Northwestern was simple – use the money in the best way possible to attract the largest number of students."

In January, The Alva Review-Courier raised questions about the distribution of the fall semester scholarships.

Of the $220,222, NWOSU awarded $57,000 to 57 athletes, the newspaper reported. Each received $1,000, which was the largest amount given to students. In contrast, 18 students received valedictorian scholarships of $750 each.

Cunningham said the university "continues to make available to all members of the city council a list of students who receive funds, the amounts they receive, and the purpose of the award – such as participation in an extra-curricular program."

"The people elected to represent us on the city council have access to all information regarding the program," Cunningham said. "However, in Mr. (Charlie) Babb's opinion, FERPA precludes the public disclosure of this information without the student's permission."

Wouldn't disclosing the names to council members be a FERPA violation? If not, why can't the information be released to the public?

Aren't Alva's residents entitled to know if their tax money is being doled out as it was intended?

City leaders thought so in 1999 when NWOSU agreed to disclose the names of recipients, how much each received and why each was chosen to get the scholarship. Didn't university officials determine then if disclosing the names would violate FERPA?

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications

NWOSU claims FERPA prohibits disclosure of students receiving $214,000 in scholarships funded by Alva sales taxes

An Alva city councilman last week questioned the claim by Northwestern Oklahoma State University officials that a federal privacy law prohibits them from disclosing which students receive scholarships funded by the city's sales taxes, The Alva Review-Courier reported Sunday.

NWOSU officials had provided the names for the past decade under a 1999 agreement with the city.

NWOSU also requires students receiving the scholarships to sign a FERPA form permitting the school to notify their hometown newspapers, reported Helen Barrett of The Alva Review-Courier and an FOI Oklahoma board member.

But last month when university officials submitted a $214,000 bill for scholarships distributed in the spring, they claimed the Family Educational Rights and Privacy Act forbids disclosure of the names.

In January, The Alva Review-Courier had raised questions about the distribution of the fall semester scholarships.

Of the $220,222 in Alva Incentive Sales Tax Scholarships distributed that semester, $57,000 was awarded to 57 athletes, the newspaper reported. Each received $1,000, which was the largest amount given to students.

In contrast, 18 students received valedictorian scholarships of $750 each.

At last week's meeting, Councilman Roger Hardaway questioned why the City Council had not been given the list of names when school officials presented the bill for spring scholarships.

“We're doing the public's business here. We should do it in the light, not in the darkness,” said Hardaway, who signed FOI Oklahoma's Open Government Pledge in 2009.

"We're becoming less open instead of more open," he said. "I think the newspaper should publish a list of every single person who gets this money because it's public money. If they don't want to waive that right, then don't give them the money.”

At Hardaway's insistence, he was allowed to see the list prior to the Council meeting.

But City Attorney Rick Cunningham told Hardaway that if he gave the list to someone not on the Council, he could be cited for violating a federal law. (Rick Cunningham is the husband of NWOSU President Janet Cunningham.)

The article didn't specify which federal privacy law Hardaway might be violating.

However, FERPA wouldn't seem to apply to Hardaway in these circumstances.

Although Hardaway is a NWOSU history professor and scholarship coordinator for the school's social sciences department, he would have distributed the list in his capacity as an elected city official, not as a university employee.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Apparent Open Meeting Act violations by the Alva City Council

Alva's City Council meeting on Monday night seemed to violate state law in four ways.

Possible Violation No. 1: Vague agenda items failing to give the public actual notice of the business to be discussed and acted upon.

Possible Violation No. 2: During executive session, discussing business not listed on the agenda for the executive session.

Possible Violation No. 3: Taking action on business not listed on the agenda.

Possible Violation No. 4: Failing to post agendas.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice,” the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 9)

But Alva City Council agendas didn’t “give the public actual notice.” For example, its second item of business on Monday was “Council consideration and action on the approval of claims.”

Council members approved more than half-a-million dollars in claims -- a near-record amount -- under that agenda item, reported Helen Barrett of the Alva Review-Courier.

The more than $536,500 in claims included more than $320,000 to Dobson Construction for work done at the airport, more than $48,000 to the Oklahoma Municipal Group insurance plan, and nearly $22,000 to the Alva Utility Authority.

But the public couldn’t have known that by reading the agenda prior to the meeting.

The purpose of the Open Meeting Act “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the Court of Civil Appeals said. (Haworth, ¶ 8)

At an open government workshop in September, public officials were cautioned against “cryptic” agenda language. A public body should not try to hide what it will be doing at a meeting, said Gay Tudor, chief of the Attorney General's General Counsel Section.

Another item on the Council’s agenda Monday was “Business Manager’s Report Items.” No information was listed under the report.

Last month, though, Tudor said the Attorney General’s Office prefers for such reports “to have bulleted points for items under the report.”

“Don’t try to hide items of business by putting it under ‘report,’” she warned.

The incomplete nature of Alva City Council agendas became apparent when Barrett contacted me about an action taken in apparent violation of the Open Meeting Act.

Barrett noted that the council, meeting as the Alva Utility Authority, entered into an executive session “to discuss the appraisal of 35 acres located in the Industrial Park” as noted on the agenda.

After returning to open session, however, Councilman Roger Hardaway made the motion to “authorize the city manager to continue negotiation with Mr. Ryerson on the property at the airport and the 35 acres at the industrial park.”

Barrett, a member of the FOI Oklahoma board of directors, challenged the legality of the executive session if the airport land had been discussed because that property wasn’t listed anywhere on the agenda.

According to Barrett’s article, Alva City Attorney Rick Cunningham said at the meeting that the vote on the airport property was under Agenda Item No. 5.

But, as Barrett correctly noted, that agenda item doesn’t mention Richard Ryerson’s airport property. It states, “Board consideration and action on the disposition of 35 acres located in the Industrial Park.”

The Open Meeting Act requires that each agenda “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

Alva's agendas didn’t do that.

Why require that agendas provide the public with actual notice of the business to be discussed and the action to be taken?

Because “without such information,” Attorney General Drew Edmondson has said, “the public is deprived of its right to be present and to know when decisions affecting the public are being made.” (2000 OK AG 7, ¶ 27)

The Oklahoma Court of Civil Appeals has said any act or omission that “has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation of the Open Meeting Act. That includes any action exceeding the scope of action defined by the notice. (Haworth, ¶ 8)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

To top off matters, the city also violated a state statute requiring that agendas for regular meetings be posted on the city’s Web site. (OKLA. STAT. tit. 74, § 3106.2(A))

To respond to Barrett’s complaint, I had download the council and utility authority agendas. All I got were blank .pdf’s. A city official told Barrett the blank agendas were a technical glitch.

All in all, not a stellar night for open government in Alva.


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