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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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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Unpublished Per Curiam Opinion reversing the circuit court’s dismissal of Plaintiff’s Writ of Mandamus and remanding to circuit court to enter judgment in Plaintiff’s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.

10/23/2017
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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. 

8/30/2017
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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. 

8/17/2017
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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.  

5/10/2017
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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.

5/8/2017
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

University of Texas System v. Paxton (Tex. App. Apr. 7, 2017)

Memorandum Opinion reversing the trial court's grant of summary judgment to Defendants-Appellees and remanding the case for further proceedings. Defendant-Appellee Marion Cameron submitted a public information request to the University of Texas System and the University of Texas (“the University”) seeking information on social science experiments being conducted by a University faculty member.  The University provided some documents but withheld certain information it deemed confidential, including the identities of the individuals who volunteered for the study. After the Texas Attorney General issued a letter ruling concluding that the University failed to demonstrate that the requested information was protected under the common-law or constitutional right to privacy, the University filed suit, and the trial court granted summary judgment to Defendants-Appellees. On appeal, the court reversed, finding that the Attorney General did not conclusively negate any element of the University's claims regarding the common law right to privacy.

4/10/2017
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

City of San Jose v. Superior Court of Santa Clara County (Cal. Mar. 2, 2017)

Order and Opinion reversing the judgment of the Court of Appeal and remanding for further proceedings.  Petitioner requested the disclosure of certain public records from the City of San Jose concerning redevelopment efforts, including emails and text messages sent or received on private devices by the mayor and two City Council members. When the City refused to release the communications from the individuals’ personal devices, Petitioner sued, claiming that the California Public Records Act’s (CPRA) applied to these communications and any communications by public officials regarding official business regardless of where those communications were created, transmitted, or stored. The California Supreme Court held, based on the broad language of the CPRA and its conclusion that an agency’s control of records includes constructive possession, that when a city employee uses a personal account to communicate about conducting public business, those communications may be subject to public disclosure. 

3/7/2017
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

Kean Federation of Teachers v. Board of Trustees of Kean University (N.J. Super. App. Div. Feb. 8, 2017)

Two former assistant professors of Kean University and its faculty labor union accused the University’s Board of Trustees of violating New Jersey’s Open Public Meetings Act (OPMA) when it failed to provide faculty members with advance written notice of its intent to discuss their employment status in an executive session, failed to make the minutes of its meeting "promptly available" to the public, and excessively redacted these minutes. The trial court held in favor of Plaintiffs, and the Superior Court affirmed.

2/10/2017
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