[authors: Peter Land and Ellen Wetmore]
On May 24, 2012, the United States Court of Appeals for the Seventh Circuit supported Illinois educational institutions’ long-held position that the federal Family Educational Rights and Privacy Act (FERPA) prohibits disclosure of student records sought through public records requests by vacating the U.S. District Court for the Northern District of Illinois’ ruling in Tribune v. University of Illinois. As we reported in March 2011, the District Court had held that the University of Illinois could not rely on FERPA to prevent disclosure of records responsive to the Chicago Tribune’s request pursuant to the Illinois Freedom of Information Act (Illinois FOIA). According to the District Court, FERPA did not “prohibit” releasing the records because the University had the option of sacrificing its federal funding in order to comply with its obligations under Illinois FOIA.
On appeal, the Seventh Circuit vacated the lower court’s decision on jurisdictional grounds but offered helpful dicta supporting educational institutions’ continued reliance on FERPA to withhold private student-related documents from responses to FOIA requests. The Court held that there was no federal subject matter jurisdiction because the Tribune’s Illinois FOIA claim arises under state, not federal, law. Relying upon the well established principle that federal-question jurisdiction cannot stem from a potential defense based on federal law, the Court observed that “[t]he Tribune’s request for information does not depend on even a smidgeon of federal law.” Rather, the Court held that Illinois state court is the proper forum for the Tribune’s Illinois FOIA claims. Dicta in the opinion also disagreed with the substance of the lower court’s ruling, as the Seventh Circuit stated: “Illinois cannot avoid the effects of its commitment to the federal government by giving a narrow reading to [the Illinois FOIA exemption for disclosures] ‘specifically prohibited by…federal law.’ Even if Illinois law purports to command the disclosure of particular information, the Supremacy Clause means that federal law prevails.”
Although Illinois educational institutions may still face state court challenges to FERPA-based objections to Illinois FOIA records requests, the Seventh Circuit’s elimination of the lower court’s decision in Tribune and supportive dicta re-establishes excellent defenses to such challenges. Educational institutions are expected to continue their longstanding refusal to disclose student records sought in FOIA requests, based on institutions’ FERPA obligations.