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

Tulsa County judge blocks online access to court records during civil trials; Court clerk expects such restrictions to become more common

A Tulsa County district judge has twice ordered the removal of online court records for the duration of the related civil trials, the Tulsa World reported Monday.

Judge Linda Morrissey ordered the docket sheets removed from the Oklahoma State Courts Network Web site during a recent medical negligence case and a condemnation case in March, the newspaper said.

The Tulsa County court clerk told the newspaper she thinks these restrictions will become more common in Tulsa County. "I am surprised it has not come up in a criminal case," said Sally Howe Smith.

Morrissey told the newspaper the restrictions were intended to protect the litigants' right to a fair trial.

But before the judge restricts online access to public records, she should take other steps to protect the litigants' rights or be able to justify that those steps won't be effective.

A number of U.S. Circuit Courts of Appeal, including the Tenth Circuit, have used the balancing test for closing courtrooms to determine if court documents should be sealed.

Because the public is entitled to see these records, the judge may stop that access only if "closure is essential to preserve higher values and is necessary to serve that interest." (See, e.g., United States v. McVeigh, 119 F. 3d 806, 812-13 (10th Cir. 1997))

Morrissey told the Tulsa World that she routinely gives strong admonitions to jurors that they not search the Internet for information about the case being tried.

But the judge doesn't seem to believe that jurors are taking her seriously.

Subsequent coverage: Digital age can heighten public access quandary, editorial, The Oklahoman, 5.5.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa Public Schools refuses to release records related to inappropriate touching of elementary students by assistant principal

Tulsa Public Schools on Thursday refused requests by the Tulsa World and at least one television station for all e-mails, memos and other records about possible inappropriate touching of students by a Skelly Elementary School assistant principal, the newspaper reported.

Tulsa police are investigating the allegations against the administrator.

Tulsa Public Schools officials, responding to the newspaper's records request, said in a press release:

Tulsa Public Schools is aware of a police investigation involving a TPS employee at Skelly Elementary School. District administrators and other staff have been fully cooperative with Tulsa police in that ongoing investigation. TPS will continue to cooperate in the investigation as required and allowed by law. …

At this point, because there are ongoing criminal and employment investigations involving confidential information with regard to a student and an employee, Tulsa Public Schools will not release any documents, e-mails or correspondence as to this matter as those items are privileged and protected by law. No further comment will be made by the district at this time with regard to this matter.

The newspaper noted that 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)

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Pottawatomie and Canadian counties' fees for digital copies of assessments databases violate Open Records Act

Chalk up two more victories for a California businessman in his legal battle with Oklahoma's county assessors over the price for electronic copies of their real property assessments.

In the past month, judges have told Pottawatomie and Canadian counties' assessors that they could charge Roger W. Hurlbert no more than $50 for the electronic databases.

Since 2008, five judges have declared the fees charged by the respective assessors violated the Oklahoma Open Records Act because the charges were “not limited to recovering only the reasonable, direct costs of record copying and record search.”

Hurlbert, an FOI Oklahoma Inc. member, does business as Sage Information Services in California. Hurlbert is represented by Douglas A. Wilson, a board member of FOI Oklahoma Inc.

Under the state Open Records Act, public bodies “may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction.” (OKLA. STAT. tit. 51, § 24A.5(3))

The most recent rulings in Hurlbert's favor came on March 24 in Pottawatomie County (C-2009-01783) and on April 6 in Canadian County (CV-2009-300).

Hurlbert also has won in Muskogee, Osage and Wagoner counties. A case in Grady County is pending.

In all five victories, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

For more background on the lawsuits and the relevant law, read these postings.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Lamons amendment would undo Terrill 'compromise' on birth date bill, subject Legislature to Open Records Act

A bill to close public access to the birth dates of government workers would become a bill requiring the state Legislature to follow the Open Records Act, under an amendment filed Wednesday morning by Rep. Lucky Lamons.

The Tulsa Democrat's amendment to SB 1753 might keep the DOB bill from coming to a vote of the full House because representatives likely don't want to decide if they should be subject to the records statute, said Mark Thomas of the Oklahoma Press Association.

Thomas warned though that Rep. Randy Terrill and the Oklahoma Public Employees Association might try to close access to the personnel information by inserting their language into another bill.

Late Monday, Terrill filed a "compromise" amendment that would end public access to the birth dates found in the personnel files of government employees. (Read blog posting on Terrill's amendment.)

House members were expected to vote either today or Thursday on that amendment.

But Lamons filed an amendment that would strip Terrill's proposed language and instead require legislators to abide by the state Open Records Act.

Lamons is one of 12 House members who signed FOI Oklahoma's Open Government Pledge.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

House could vote today on Terrill 'compromise' ending public access to government employees' birth dates

Rep. Randy Terrill's "compromise" would end public access to the birth dates of government employees and "be the end of the presumption that records are open unless closed," the Oklahoma Press Association executive vice president warns.

"We need to ratchet up the calls (to state legislators) or this terrible process – even though limited to DOB now – will creep into the open records act," says Mark Thomas. "They will be open if you can prove to the government you need them bad enough."

Terrill's floor amendment, filed late Monday, to SB 1753 could be voted on by the full House today or Thursday.

Paul Monies of The Oklahoman says the new language "makes a bad bill worse and turns the whole Oklahoma Open Records Act on its head."

Thomas is calling on state newspapers and open government advocates to tell House members to vote against the amended bill.

Thomas explains the procedure created by Terrill's amendment:

1. You will have to submit the employee’s DOB – obtained from another source – and the public body will only verify the accuracy of what you have submitted. You won’t actually get the DOB as a record – this law still closes all public employee DOB’s.


2. You must give a public body a written request for a record.


3. Your written request must ask about a specific person – not more than one person per request.


4. Your written request must provide a REASON why you want the public record.


5. The public body will only respond if the person you are asking about works there on the day of the request – not if they worked there in the past.


6. The public body will have a “reasonable period of time” to review your request.


7. The public body will tell you if they have the record or if they don’t have it – but not provide the DOB to you. The public body will just give you a written confirmation that what you submitted to them is correct.


8. But before the public body replies to you, they must notify the employee of your request within a “reasonable period of time.” The public body must tell the employee WHO is asking for the record, and WHY you say you want it.
   

(The amendment's language is at the end of this blog.)

"They will say it is 'only for DOB' but you know it will spread to other records requests when this gets in the Open Records Act," Thomas says. "You know how terrible this process will be – but DOES YOUR LEGISLATOR KNOW how devastating this will be on requests for records?"

Monies says on his Data Watch Blog the bill would "grant public employees greater privacy protections than registered voters, licensed drivers and people who buy prescription drugs in Oklahoma."

Twelve members of the House signed FOI Oklahoma's Open Government Pledge while campaigning.

They promised voters that if elected, they would "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Most of those signers seemed to have forgotten that promise this legislative session. It's time for them to remember it.

The state representatives who signed the pledge:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• Lamons, Lucky, D-Tulsa
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Nations, Bill, D-Norman
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

Here is the relevant portion of Terrill's amendment:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 24A.7-1 of Title 51, unless there is created a duplication in numbering, reads as follows:

A. No public body shall release to any person or entity the exact date of birth for any employee of the public body.

B. For purposes of the Oklahoma Open Records Act, an employee’s date of birth shall not be subject to disclosure by the public body except for the procedures prescribed by this section for responding to requests to confirm or deny a date of birth with respect to a person identified in a request for verification.

C. A person or entity may request a verification from a public body that a birth date for a specifically identified person whom the requestor reasonably believes to be employed by the public body as of the date of the request is the same as the birth date for such employee as reflected by the employment records of the public body.

D. The requestor shall submit a written request for verification of date of birth to the public body which request shall contain:

1. The complete name of the person whom the requestor reasonably believes to be an employee of the public body as reflected in the information or document relied upon by the person or entity making the verification request;

2. The particularized and specific reason that the requestor is asking for verification of the employee date of birth for each employee included in a verification request; and

3. Any other identifying information related to the information or document in the possession of the requestor that would allow the public body to determine whether or not the person identified in the request is an employee of the public body.

E. For purposes of verification requests submitted by any person or entity and for purposes of responses to such requests by a public body, a person’s status as an employee shall be determined as of the date that the verification request is submitted to the public body.

F. The public body shall have a reasonable period of time from the receipt of a verification request within which to review the request and any document or other information identified in the request to ascertain whether the person named in the verification request is an employee of the public body.

G. If the public body determines that the person identified in the verification request is or may be an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth of the employee is the same as the date of birth provided by the requestor with respect to the person identified in the verification request.

H. If the public body determines that the person identified in the verification request is not an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth provided by the requestor with respect to the person identified in the verification request does not match the date of birth of any employee of the public body.

I. Within a reasonable period of time after a public body receives a verification request pursuant to this section and prior to the date as of which the public body provides a written response confirming a birth date of one or more of its employees, the public body shall provide written notice to any employee whose date of birth has been the subject of a verification request by a requesting entity of the identity of the requesting entity and the reason provided by the requesting entity for the verification request.

J. Prior to making the written verification to a requesting entity with respect to an employee date of birth, the public body shall notify any employee whose date of birth will be confirmed to a requesting entity that the public body will be providing a confirmation of the date of birth to a requesting entity.

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

Autopsy reports used to reveal incompetency, corruption, but Oklahoma legislators want to stop public access to such records

(See also, Legislator withdraws bill restricting access to autopsy records)

A bill limiting what the public may know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown was unanimously approved by state senators on Thursday.

But the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

For example:

• The FBI recently began investigating three post-Katrina police shootings in New Orleans because of a series published by ProPublica and others. Two experts said an autopsy report raised questions about one of the fatal shootings and its circumstances. One of the experts called the New Orleans coroner’s forensic work in the case “incomplete at best.”

• In Florida, an associate state medical examiner was found to have falsified several autopsy reports. His license to perform autopsies in Missouri had been revoked earlier because he fabricated autopsy reports there.

• In Tennessee, the state medical examiner was stripped of his job and later his medical license after two investigations concluded he had botched autopsies and lied on some autopsy reports. In one case, for example, he concluded a man died of multiple stab wounds but another forensic pathologist later said the wounds were "cuts from a glass table that the deceased fell on when he died.” In another, he determined a death was caused by sudden-infant death syndrome but a review of the autopsy found the child died of acute cocaine intoxication.

• In Texas, a former medical examiner was convicted of falsifying autopsies in three counties.

In Oklahoma, HB 3155 is headed to a conference committee, so Senate and House leaders can work out details.

Sponsored by Rep. Leslie Osborn, R-Tuttle, the bill passed the House last month by a vote of 86-7. Voting "yes" were 10 House members who had signed FOI Oklahoma Inc.'s Open Government Pledge. More on that later.

The legislation would close access to "information contained in an autopsy report providing the 'manner of death' as homicide, unknown or pending until discoverable under law."

For those autopsy reports, the Office of Chief Medical Examiner would be required to tell the public the "autopsy number, case number, laboratory analysis number, manner of death, full name, age, date of birth, race, sex, and home address of decedent, name and title of the individual notifying the Office of the Chief Medical Examiner, date and time of such notification, including the city, county, type of premises, and the date and time of viewing, and the date report was filed."

HB 3155 closes the information to family members, closes the reports indefinitely, and doesn't address cases in which the person died in the custody of police, notes Mark Thomas of the Oklahoma Press Association.

OSBI requested the bill, reportedly because "telling details were released in two high-profile cases last year." The public is left with the impression that releasing those details has prevented OSBI from solving those murders.

The Oklahoman called the bill "an overreaction." But for most of our state legislators, that impression seems sufficient reason to stop access to government records long available to the public.

No thought seems to have been given to whether the public has a legitimate need to know the details of autopsy reports involving homicides or when the manner of death is unknown.

"When you close records, it allows corruption to creep into the system of identifying who died and how," said Thomas. "It is so important that this has to be carefully scrutinized, whether law enforcement likes it or not."

State Rep. Lucky Lamons, a former Tulsa police officer, agrees that the autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons has pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information

When the measure passed the House, Lamons, a Democrat, was the only legislator who lived up to his pledge to support open government.

Representatives who had signed the pledge but voted to close the records were:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

By signing the pledge, these House members had promised “to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

Even though Senate President Pro Tempore Glenn Coffee, R-Oklahoma City, voted for the bill, he has said he does not support making information on the reports completely confidential.

"I think we need to be very cautious in going down that road,” Coffee said. "There may be some issues about when things are released and being able to build a case. But a blanket confidentiality is probably overshooting the issue.”

It sure would.

To read coverage of the autopsy bill:

• Senate OKs bill to keep autopsy information confidential, by Barbara Hoberock, Tulsa World, 4.16.10.

• Oklahoma lawmakers eye autopsy proposal, by Julie Bisbee, The Oklahoman, 4.16.10.

• Bill would keep autopsies secret, by Amanda Guerra, KOCO, 4.16.10.

• Whittling away: Autopsy records bill should be shelved, editorial, The Oklahoman, 3.31.10.

• House passes autopsy-closure bill, by Barbara Hoberock & Nicole Marshall, Tulsa World, 3.10.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism