Md. Attorney General issues FERPA opinion

  There was a victory for the public in the battle for records at the University of Maryland this spring.

  An opinion issued by the Maryland Attorney General in March is going to mean a change in the way the University of Maryland, College Park (and, quite likely, the entire University System of Maryland), handles requests for the identities of individuals found to have violated the university’s Code of Student Conduct on charges related to sexual assault.

  In the past, the University had declined to identify such individuals, citing FERPA — the Family Education Rights and Privacy Act. Many universities use FERPA to deny the release of what they broadly interpret as “education records,” defined as “information directly related to a student.” Colleges and universities claim the release of student information — without the consent of the student — would violate the law and could mean a loss of federal funds.

  But, Robert M. McDonald, chief counsel for opinions and advice in the Attorney General’s office, responding to a request that grew out of an award-winning special radio report by Philip Merrill College of Journalism students about rape and sexual assault on the campus, wrote, “A request by a student journalist for such information would be treated as a PIA request to the University. The University would be obligated under the PIA to disclose the requested information, unless an exception to the general rule of disclosure applies….. if the University finds that its rules or policies were violated in a matter involving concerning a forcible sexual offense, incest, or statutory rape, the final results of the disciplinary proceeding – including the identity of the accused student – may be disclosed without violating FERPA.”

  This is the second time the university has been ordered to release info it had previously denied under FERPA. In 1998, the Maryland Court of Appeals ruled on a suit brought by the independent student newspaper The Diamondback after the newspaper was denied information concerning parking tickets collected by student athletes.

  The university denied the request, saying such records were protected by the confidentiality provisions in FERPA. But the state’s highest court disagreed, saying FERPA did not preclude the release of such information. The court went on to say:

  “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 [FERPA]. 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.”

  I was the instructor for the class that produced the special report on campus sexual assault and rape two years. Subsequent classes did some follow-up on the report but the matter of getting the names of individuals found to have violated the University’s Code of Student Conduct on sexual assault charges proved impossible to get. The university said the names were protected but the Student Press Law Center said they were not.

  More than a year ago, I contacted a fellow UM alum and (now former) state delegate, Montgomery County’s Bill Bronrott, to share with him the results of my students’ work and to see if he might be willing to request an opinion from the Attorney General’s Office on the matter. Bronrott submitted a letter asking for a ruling. In March, the opinion was issued.

  The university has said it will comply with the law and will provide the names of offenders who were found to have violated the Code of Conduct, their offense and the punishment. But it could take some time before the information is released. At issue is what the university says it will cost to research and prepare the information that was requested.

  While the details and costs remain to be worked out, it is indeed now clear that the public does have a right to know and the student journalists and faculty at the Merrill College of Journalism will be there to both fight for that right and to bring that information to the public.