The Family Educational Rights & Privacy Act (FERPA) was enacted in 1974 to ensure (1) that parents of students, or students over the age of 18 or attending an institution of post-secondary education, had access to their education records, and (2) to protect the student's right to privacy by limiting the transferability and disclosure of educational records without consent. To have FERPA protection, a document must be an "educational record" of a "student." A Wisconsin appellate court recently analyzed who is a "student" under FERPA and what is an "educational record."
In Osborn v. Board of Regents of the University of Wisconsin System, 2001 Wi. App. 209, 634 N.W.2d 563 (2001), Mr. Osborn and the Center for Equal Opportunity made public record requests to the University of Wisconsin System for records of applicants and students of its various universities. Specifically, Osborn sought records relating to standardized test scores, grade point averages, class rank, extracurricular activities, areas of study, state of residence, race, sex, and remedial or academic probationary status. Osborn wanted the documents to assist him in a study on the impact of race, ethnicity, immigration and other factors on admissions. While the University provided some documentation to Osborn, it denied many of the requests because of the University's obligation under FERPA to keep private the educational records of its students. Osborn sued, claiming that applicants were not students under FERPA and any personal information could be redacted.
Because FERPA's definition of a student "excludes" a person who has not been in attendance at such agency or institution," the Wisconsin state court ordered the University to produce the records of applicants who had not matriculated. For those who had matriculated, the state court ruled that the University was not required to remove personally identifiable information about the enrolled students.
Both sides appealed the decision. The appellate court reviewed the interplay between the public's statutory right to inspect records made by state agencies and FERPA's protection of educational records. The court first divided the requests based on the nature of the applicants: (1) those who did not enroll and (2) those who did enroll.
For those individuals who did enroll, the court found that grades, test scores and probationary status, among others, were education records under FERPA as they were directly related to a student and maintained by an educational institution or agency. Thus, FERPA prevented the disclosure of the enrolled students' educational records without consent, regardless of redaction. The appellate court also agreed with the trial court ruling that the University was not required to create new documents to respond to the requests.
In a sharp departure from the trial court's decision, the appellate court found that applicants who had not enrolled at a university were also considered "students" under FERPA and their records were protected from disclosure. The court called FERPA's exclusions for matriculating applicants "outdated" and, instead, looked to the current regulations that define student as "any individual who is or has been in attendance at an educational agency or institution." 34 CFR § 99.3. Emphasizing the word "an," the court reasoned that it was not necessary that an individual actually enroll at the same university where the request was directed as long as the applicant was a student at the educational institution or agency that created the records at the time the records were created. For example, Osborn's requests sought high school or undergraduate class rank. The court reasoned that these records were created by a high school or other university at the time the applicant was a student at that institution. Osborn also sought standardized test scores. The court opined that the scores were created by an educational agency when the applicant was a student in attendance at that agency.
Because the class rank and test scores would be considered educational records if maintained at the high school, university or testing agency, the court held that the records did not lose FERPA protection when transferred to the University of Wisconsin System for admission purposes. The court also held that the public interest in maintaining the privacy of education records outweighs the public interest in their disclosure under the Wisconsin Open Records Act.
So, what is the import of Osborn on educational institutions faced with determining whether a student record may be disclosed? Under the Osborn analysis, an educational institution would need to determine not only whether the record is requested of an individual who was or is enrolled at that institution, but also whether the records it maintains on an applicant who did not enroll were created by another educational institution or agency when the applicant was a student at that other educational institution or agency. This analysis is broader than the statutory definition suggests, but it remains in line with FERPA's purpose to protect students' privacy. Osborn also makes clear that an educational institution or agency does not need to create a new record to comply with a record request.
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