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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

Sheil v. Horton (Ohio Ct. Cl. April 16, 2018)

Report and recommendation from the Ohio State Court of Claims concluding that the Cuyahoga Community College Foundation (“Tri-C Foundation”) – a tax exempt, nonprofit entity created to solicit, receive, and hold public contributions for the benefit of Cuyahoga Community College (“Tri-C”) – is subject to Ohio’s Public Records Act. Requester Sheil alleged that respondent Horton, the Media Relations Manager at Tri-C, denied access to public records by rejecting his request for a copy of a contract between Tri-C Foundation and an actress for a speaking engagement. Horton argued that Tri-C Foundation was not subject to the public records act because it was not the functional equivalent of a public entity, and that, even if it were, the contract constituted a trade secret. Applying the “functional equivalency” test in State ex rel. Oriana House, Inc. v. Montgomery, the court concluded that all factors weighed in favor of finding that Tri-C Foundation was the functional equivalent of a public office. Even were it not the functional equivalent of a public office, Tri-C Foundation and Horton were subject to the act as “person[s] responsible for public records.” Horton’s trade secret argument failed because he failed to show that any material in the requested contract constituted a trade secret.

5/10/2018
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Title IX; FERPA; Sexual Misconduct & Other Campus Violence; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

DTH Media Corp. v. Folt (N.C. App. April 17, 2018)

Order affirming-in-part and reversing-in-part the district court’s opinion.  Plaintiffs, North Carolina-based news organizations, filed requests under the state Public Information Act (PIA) to obtain information from the disciplinary records of students who had violated the University of North Carolina’s (UNC) sexual assault policy.  Specifically, Plaintiffs sought the names of students found responsible for violating the policy, the date and nature of each violation, and the sanctions imposed.  Plaintiffs argued that §1232g(b)(6)(B) of the Family Educational Rights and Privacy Act (FERPA), which permits discourse of “the final results of any disciplinary proceeding . . . if the institution determines as a result of the disciplinary  that the student committed a violation of the institution’s rules or policies with respect to [crimes of violence or non-forcible sex offenses],” required disclosure; while Defendants argued that Plaintiff’s interpretation interfered with FERPA’s “implied grant of discretion” to UNC to decide whether to release student disciplinary records.  Finding no case law or legislative history supporting Defendant’s proposed interpretation of FERPA, the court concluded that the records were generally subject to disclosure, with the caveat that the dates of the offenses sought by Plaintiffs were not subject to disclosure under the plain language of the statute. The court also rejected Defendant’s contention that FERPA pre-empted the PIA. 

4/23/2018
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

Libertarians for Transparent Gov’t v. William Paterson University (N.J. Super. App. Div. April 12, 2018)

Unpublished Per Curiam Opinion reversing an order awarding Plaintiff attorney’s fees and costs. Plaintiff sought disclosure of a settlement agreement from Defendant William Paterson University (WPU) relating to litigation against the University, which WPU provided after the agreement was executed by all the parties. At issue was whether WPU violated the New Jersey Open Public Records Act (OPRA) by failing to disclose an unexecuted, draft version of the settlement that existed on the date of Plaintiff’s OPRA request. The court found that the document at-issue was exempt from disclosure under the OPRA because it was a “draft document subject to continued revision and negotiation.”

4/18/2018
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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.

3/8/2018
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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.

3/1/2018
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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.”

1/22/2018
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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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