Sure, it seems simple. The University of Oregon is a public entity, and therefore all its records are public, right?
Not at all.
There has been a great deal of public and media scrutiny recently over redactions related to a high profile report of sexual assault. Critics have pointed to the redactions as evidence of a grand cover-up, when in fact they are grounded in laws that protect the records of all students from being released in potentially damaging ways.
“The applicable laws exist to protect all students, across Oregon and across the country,” said David Hubin, who oversees the public records office. “They are federal and state privacy rights and are not something an educational institution can arbitrarily waive. These laws keep a child’s elementary school grades from landing on the front page of the newspaper. And they are the same laws that keep the outcome of a student conduct hearing from being released upon conclusion.”
“The UO Office of Public Records has handled thousands of requests for public records since its creation in 2010, averaging a 10 day turn around,” said Lisa Thornton, public records officer. “In that turn-around time, there are a number of steps and laws that are weighed to insure appropriate compliance with state and federal regulations.”
Upon receipt of a request, the office works to provide the requestor with a cost estimate for assembling the responsive records. Fees can be waived or reduced if it is determined producing the document is in the public interest.
Once the fee question is resolved, the records are gathered and reviewed through three primary lenses:
- The Family Educational Rights and Privacy Act (FERPA), which prohibits the university from providing educational records that are personally-identifiable to an individual that is now or who has ever been enrolled at the university (whether an educational record is personally identifiable is based on the content of the educational record itself as well as information otherwise available in the public domain from which the identity may be deduced);
- Applicable exemptions and exclusions from the Oregon Public Records law, including but not limited to those outlined in ORS 192.501 and ORS 192.502; and
- Information protected by attorney-client privilege.
A record is a personally identifiable education record if it contains information that would allow the identity of a student to be ascertained. Such records involve any matter in which an individual student is discussed.
“The easiest way to think about FERPA, is that it is the HIPPA of educational records,” said Thornton, referring to the federal law that protects medical records. “We would no more want our private educational records to be made public than we would the results of our last medical examination. And while some might want these standards to be flexible in cases of alleged student misconduct, the law is not made to be flexible.”
In some cases, the public records office staff enlists the expertise of general counsel to help determine whether or not a record is public or whether information should be redacted. However, both offices approach public records with an eye towards transparency.
“The notion that we strive for transparency might seem counter-intuitive when we’re looking at documents that are completely redacted, however, it is what we strive for,” Hubin said. “Still, this desire cannot supersede our commitment to maintaining the privacy of our students. It is a federal mandate and observance is critical to ensuring that we continue to receive federal financial assistance. We must often weigh the needs of a free press and our commitment to transparency with a right to privacy, even in cases where there is a public perception that a student has done something wrong. It’s not unlike a freedom of speech debate. We cannot be selective. We must embrace all forms of free speech, whether we agree with it or not.”
For more information on the Office of Public Records, visit publicrecords.uoregon.edu. For more information on Oregon public records law, visit http://www.doj.state.or.us/public_records/citizens_guide.shtml. For more information on FERPA, visit http://www2.ed.gov/policy/gen/reg/ferpa/index.html.
-By Tobin Klinger, Senior Director Public Affairs Communications