New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Scott v. University of Wisconsin System Board of Regents, et al. (Wis. App. March 6, 2018)

Per Curiam Opinion affirming the circuit court’s denial of Plaintiff’s Petition for Writ of Mandamus. Plaintiff, a former University of Wisconsin-Milwaukee (UWM) student, requested disclosure of public records from UWM, specifically, communications or emails containing certain keywords and numbers sent to and made by the Dean of Students. UMW produced over 2,000 pages in response, but redacted student names as required by the Family Educational Rights and Privacy Act (FERPA). Citing Wisconsin case law and concluding that UWM properly redacted the responsive records, the court held that “the presence of a student’s name in a document maintained by UMW makes the document an education record under FERPA.” Further, the court rejected Plaintiff’s argument that “maintaining” an education record required “something more active and deliberate than merely having custody of the document.” Last, the court found no abuse of discretion in the circuit court’s denial of in camera inspection since UWM provided specific reasons for non-disclosure.

FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

West v. TESC Bd. of Trs., et al. (Wash. App. Feb. 27, 2018)

Unpublished Opinion affirming the decision of the trial court in favor of the Defendants.  Plaintiff sued Evergreen College, claiming that Evergreen improperly redacted and withheld certain records in responding to a request by the Plaintiff under the State Public Information Act (PIA).  Evergreen produced 1219 documents in response to Plaintiff’s PIA request, withholding or redacting documents protected by the attorney-client privilege and documents that contained personally identifiable information from student education records. The court concluded that Evergreen properly redacted student identification numbers, student photos, and student disciplinary correspondence in accordance with Family Educational Rights and Privacy Act (FERPA).  Because the redactions were made pursuant to federal law, the court also concluded that the information was exempted from mandated disclosure under the PIA.

Research; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Uhr v. University of Minnesota (Minn. App. Jan. 16, 2018)

Unpublished Opinion affirming Respondent’s Motion to Dismiss. Appellant brought claims under the Minnesota Government Data Practices Act to obtain training materials, recruiting materials, and the identity of participants in Respondent’s research on illegal alcohol sales to intoxicated individuals. The court found that Respondent was required under its grant application to the U.S. Secretary of Health and Human Services, as consistent with federal regulations, to keep individually identifying data of participants confidential. The court further found that training and recruiting materials requested by Appellant were protected as trade secret information because they had “independent economic value.”

Freedom of Information & Public Record Laws; Practice of Higher Education Law

Animal Legal Defense Fund v. Board of Regents of the University of Wisconsin and Lane (Wis. App. October 19, 2017)

Unpublished Per Curiam Opinion reversing the circuit court’s dismissal of Plaintiff’s Writ of Mandamus and remanding to circuit court to enter judgment in Plaintiff’s favor and compel disclosure of certain records under the Wisconsin public records law. Plaintiff, the Animal Legal Defense Fund, submitted an open records request to the University of Wisconsin (UW) for notes from an Animal Care and Use Committee meeting on research protocols related to maternal deprivation and social isolation of non-human primates.  UW withheld responsive documents, arguing they were not “records” within the Wisconsin public records statute but instead fell within a statutory exemption, which excludes notes “prepared for the originator’s personal use.” Because the notes were created either to be shared with other employees to develop the meeting minutes or  to memorialize agency activity, the Court found that the notes should not have been exempted from disclosure.

Freedom of Information & Public Record Laws; Practice of Higher Education Law

ESPN, Inc. v. Michigan State University (Mich. App. Aug. 18, 2015)

Per curiam Opinion affirming the state trial court’s determination in favor of Plaintiff. ESPN, Inc., submitted a state Freedom of Information Act (FOIA) request to Michigan State University (MSU) for incident reports identifying student-athletes suspected of misconduct. Citing privacy exemptions in a Michigan statute that allows public entities to exclude information “of a personal nature” from disclosure if such disclosure would “constitute a clearly unwarranted invasion of an individual’s privacy,” the University produced two sets of records but redacted the names and identifying information of the suspects, victims, and witnesses involved. ESPN sued, and after determining that the FOIA exemption did not apply to the names of the suspects, the trial court ordered MSU to disclose the suspects’ names if they were one of the 301 student-athletes identified in ESPN’s request. The appeals court affirmed. Although being linked with a criminal incident qualified as information “of a personal nature,” the court concluded that the trial court did not abuse its discretion when it found that the public’s interest in understanding how the University’s police department handles criminal investigations outweighed the student-athletes’ privacy interests. 

FERPA; Freedom of Information & Public Record Laws; Students; Practice of Higher Education Law

Kentucky v. University of Kentucky (Ky. Cir. Ct. Aug. 10, 2017)

Declaratory Judgement overruling the Attorney General’s Motion for Summary Judgment, and granting in part but overruling in part the University of Kentucky’s (UK) Motion for Summary Judgment. The Kentucky Kernel,  UK’s student newspaper, requested records from the UK in connection to the resignation of a professor. The University refused to disclose certain documents because they contained personally identifiable student information, and releasing them would violate the Family Educational Rights and Privacy Act (FERPA). The student newspaper appealed the decision to the AG, pursuant to state public records law that permits the AG to conduct in camera reviews to substantiate the privilege asserted.  Following the University’s subsequent refusal to turn over the records to the AG, the AG found that the University failed to meet its burden of proving that the privilege attached. The University appealed to the circuit court, which held that the University was not required to disclose the documents since  FERPA preempts contradictory provisions in the State open records law, and additionally, since previous open records decisions justified the University’s position. 

Freedom of Information & Public Record Laws; Practice of Higher Education Law; Foundations & Affiliated Entities; Governance

Chicago Tribute v. College of Du Page (Ill. App. May 9, 2017)

Opinion affirming the lower court’s judgment, dismissing Plaintiff’s cross appeal, and remanding the case for further proceedings. The Chicago Tribune brought suit against the College of Du Page, a public institution, and the College of Du Page Foundation pursuant to the Illinois Freedom of Information Act (FOIA), seeking disclosure of a federal grand jury subpoena that had been served on the Foundation. The College responded that it did not have any documents responsive to the request, and the Foundation responded that, as a private nonprofit entity, it was not subject to FOIA. The Tribune filed a Complaint and Defendants moved for summary judgment. The circuit court ruled that the Foundation was not a subsidiary public body due to its formal legal nature and the College's lack of direct control over the Foundation Board, but ultimately granted summary judgment in the Tribune’s favor after concluding that the subpoena was a public record in the Foundation's possession, was obtained while the Foundation was performing a governmental function on behalf of the College, and related directly to that governmental function. On appeal by both the Tribune and Defendants, the appeals court affirmed.  

Research Safety & Protection; Freedom of Information & Public Record Laws

Consumer Credit Research Foundation v. Board of Regents of the University System of Georgia (Ga. App. May 4, 2017)

Order vacating the trial court’s grant of summary judgment to Defendants and remanding with direction. The Campaign for Accountability filed a Georgia Open Records Act request with Kennesaw State University (KSU), which is part of the University System of Georgia, requesting that it release certain correspondence between a professor who was conducting research on payday loans and the Consumer Credit Research Foundation (CCRF). CCRF objected to the release of the records and filed suit. The trial court granted summary judgment to Defendants. The appeals court reversed, holding that the trial court erred in ruling that KSU had the discretion to release the research correspondence even if the correspondence was specifically exempt from disclosure under the research exceptions found in the Act. It remanded the case so that the trial court could determine whether the materials were subject to either of the Act’s research exemptions.