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.

The Oklahoma Daily: OU might have overcharged by more than $11,000 for copies of public records

The University of Oklahoma might have overcharged the public for copies of records by more than $11,000 during the past three years, The Oklahoma Daily reported today.

The student newspaper based that number on the university charging 25 cents per page when its costs amount to 8 cents per page.

OU officials told the newspaper that each copy actually costs the university 32 cents, including 27 cents per page for labor.

“We calculated labor at a rate of $25,000 plus benefits at 34 percent and assumed that each copy takes one minute of someone’s time,” said Rachel McCombs, OU Open Records Office director.

The newspaper's reporter, Nicholas Harrison, noted that the slowest copier meeting state agency specifications must make at least 10 copies per minute. Based on that number, the newspaper calculated that the most that OU officials could justify in direct costs was 8 cents per page.

Harrison also noted that Norman commercial copy shops profit from 4 to 10 cents per page. While on campus, the Bizzell Memorial Library charges cost 7 cents per page and the Oklahoma Memorial Union’s Crimson & Cream Copy Center charges 10 cents.

The full story is worth reading.

In an editorial, the newspaper called on the university to lower the copy fee and noted that it has been waiting for more than 16 weeks for records related to OU's purchase of a monastery in Arezzo, Italy, to create residence halls for students and faculty abroad.

Kudos to Harrison and The Oklahoma Daily editors for not meekly accepting what OU was charging for the public's documents and instead challenging the numbers with good reporting, common sense and a calculator.


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.

OU provides student contact data to bank as part of monetary agreement even though state law bans selling it for purposes of marketing credit cards to students

University of Oklahoma officials have provided student contact information to the Bank of America in apparent contradiction of state law, the student newspaper recently reported.

The Oklahoma Daily's article and editorial focus on what the university has done with $8.8 million it has received from its credit card affinity agreements with the Bank of America and Mid-First Bank.

According to the newspaper, OU received money in exchange for releasing student contact information to the Bank of America. "OU receives commission and royalties on all purchases made on the cards and when the bank acquires new members," the newspaper reported.

"In return for these contact lists and other forms of support and assistance, the university receives $1 for each new student credit-card account opened, $1 for each annual fee paid on student credit-card accounts, 0.40 percent on all retail transaction volume for all student credit-card accounts and other royalties," the newspaper said.

As The OU Daily points out, state law bars universities from selling "student data to any creditor for purposes of marketing consumer credit to students." The statute defines creditors as any company "who, in the ordinary course of business, regularly extends consumer credit." (OKLA. STAT. tit. 70,§ 3245)

The newspaper said OU officials agreed with Bank of America to provide updated contact lists containing the last-known mailing address and phone numbers of alumni, donors, faculty, staff and "other potential participants." These other potential participants have always included students, university spokesman Chris Shilling told the newspaper.

Shilling said the student information was NOT being sold because OU is required by law to provide student-directory information to anyone who makes an open records request.

I wish universities would be this creative in finding a way to provide public records when doing so wouldn't garner them millions of dollars.


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

OU Regents claim loopholes in Open Meeting Act to bar student reporter from committee meetings

A reporter for The Oklahoma Daily was prohibited by the legal counsel for The University of Oklahoma Board of Regents on Wednesday from attending four committee meetings where, as the student newspaper points out, "public business regarding university building plans and fees were discussed."

The reporter was barred from meetings of the board's audit and finance, Norman campus, Health Sciences Center campus and athletics committees, the newspaper reports today .

In an e-mail to the newspaper, OU regents legal counsel Anil Gollahalli called the meetings "informational subcommittee meetings to allow members of the Board to more fully find facts relevant to items that may considered by the full Board in public session."

The Open Meeting Act clearly states that the definition of public body "shall include all committees or subcommittees of any public body." (OKLA. STAT. tit. 25, § 304(1))

But Gollahalli told the newspaper, "To ensure that the entire Board always gathers in meetings open to the public, subcommittees are composed of no more than three members of the Board such that subcommittees lack a quorum."

In other words, the regents purposefully meet in groups smaller than a quorum of the full board as a way to avoid discussing the public's business in front of the public.

A loophole in the Open Meeting Act's definition of "meeting" allows a group smaller than the majority of a public body to meet secretly to discuss the public’s business.

But does that apply if the three members of a public body constitute the entire membership for a committee of that public body? A quorum of the committee is meeting to discuss public business.

So how does Gollahalli attempt to bypass that problem? By saying the committees have no independent decision-making authority.

"The informational nature of the subcommittees are such that no subcommittee has independent decision-making authority, ensuring that no decision of the Board ever occurs without participation of the full Board and the public's knowledge," he told the newspaper.

That relies on an exception the state Supreme Court carved out for sub-entities -- typically ad hoc committees or citizens advisory committees -- empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity.

A subordinate entity -- a Citizen's Advisory Committee in that case -- with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton, 1978 OK 53.

HOWEVER, Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the Citizen’s Advisory Committee met.

The current statutory language including "all committees or subcommittees of any public body" in the definition of public body was added in 1977.

A 1981 attorney general relied upon that "expanded definition" to decide that Job Content Evaluation Committees were "the subcommittees of a public body, the State Personnel Board." (1981 OK AG 214)

Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:

In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.

Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law.

Under the new Open Meeting Act, the term 'public body' was enlarged to include, '... all committees or subcommittees of any public body.' The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (¶¶ 7-8)

Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the "1977 changes merely added several new categories to the definition of 'public body.'" (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)

But the key question in International Association of Firefighters was whether the Sanders rule on subordinate entities applied to "an individual."

The court concluded that the Legislature had not intended for the 1977 revisions to expand the Sanders doctrine to include an individual.

The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body "shall include all committee or subcommittees of any public body."

Had legislators overridden the rule set forth in Sanders? Attorney General Cartwright believed so in 1981.

So we're back to asking what the OU regents' committees do? If they make recommendations, do they cull options from the list? That would be making a decision and require them to comply with the Open Meeting Act.

And does the Sanders rule apply to standing committees of a public body?

But the real question here is why shouldn't the public be allowed to attend "informational subcommittee meetings" in which members of a public body "more fully find facts relevant to items that may considered by the full Board in public session."

It is, after all, the public's business.

Our state Court of Civil Appeals has said the "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 12)

Our state Supreme Court has said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)

Because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court has said, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is "very simple," the state Court of Civil Appeals has said, "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)

Gollahalli said, "The University and its governing Board are committed to openness and transparency and endeavor to ensure full compliance with all applicable laws."

But the OU regents and their legal counsel are using a strict compliance with the letter of the law to defeat its purpose, which is "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."

When a public body does the legal equivalent of the limbo to avoid the Open Meeting Act, it doesn’t build the public's trust or confidence in government. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. And it certainly doesn't demonstrate a commitment to openness and transparency.

Unfortunately, OU regents aren't alone among university and college administrators in this regard. But perhaps OU's regents will reconsider. One can only hope.


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

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

OU discloses cell phone records, text messages of former assistant basketball coach

The University of Oklahoma this week released the cell phone records of a former assistant basketball coach whose contact with a financial adviser is being investigated by OU and the NCAA.

The Oklahoman and Tulsa World said the coach had exchanged at least 41 phone calls and 25 text messages during a 10-month period with a financial adviser accused of wiring $3,000 into the bank account of a then-OU basketball player.

In April, OU officials had refused to release the cell phone records, claiming the documents were part of "confidential litigation files and investigatory reports."

But under the state Open Records Act, any records that "would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (OKLA. STAT. tit. 51, § 24A.20)

The fact that officials may keep the cell phone records confidential in an investigatory file "does not extend to other files in which the document is kept." (1999 OK AG 58)(See also 1990 OK 60)

The newspapers said OU officials released the records this week.

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

OU refuses to release cell phone records; Open Records Act doesn't allow officials to hide public records by placing them in investigatory file

The University of Oklahoma is refusing to release the cell phone records of an assistant basketball coach who resigned this week, The Oklahoman reported today.

OU officials claim the records are part of "confidential litigation files and investigatory reports," the newspaper reported.

But under the state Open Records Act, any records that "would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (OKLA. STAT. tit. 51, § 24A.20)

The fact that officials may keep the cell phone records confidential in an investigatory file "does not extend to other files in which the document is kept." (1999 OK AG 58) (See also 1990 OK 60)

The Oklahoman noted that TMZ.com reported last month that a former Merrill Lynch financial adviser wired $3,000 into an account held by an OU basketball player and his mother last August.

The newspaper said it's not clear whether the investigation shielding the cell phone records is related to OU’s investigation into the relationship between the former financial adviser and the player.

The newspaper requested correspondence between OU's athletic department and the NCAA regarding the former financial adviser. But university officials denied the request, saying the correspondence is part of "confidential litigation files and investigatory reports."

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism