Montana Supreme Court Struggles with the Intersection of FERPA and State Open Records Laws

Saul Ewing Arnstein & Lehr LLP

Saul Ewing LLP


While investigating sexual misconduct at the University of Montana’s campus, bestselling author Jon Krakauer filed a request with the office of the Commissioner of Higher Education of the State of Montana to inspect specific student records.  In considering whether Krakauer was entitled to access the documents through the state’s open records law, the Montana Supreme Court on appeal provided a partial roadmap for how courts may consider the intersection of the privacy interests of students and open records laws.

Jon Krakauer filed a request with the University of Montana asking for records regarding the outcome of a particular student conduct proceeding.  The University refused to acknowledge that the records existed, and further refused inspection of such documents.  In response, Krakauer filed a petition in the First Judicial District Court under Montana’s right to know law. 

In support of his petition, Krakauer submitted court documents from Doe v. Univ. of Montana, another case that had been unsealed and released by the court.  Krakauer believed that he could identify Doe by name because of the factual similarities between the federal case and a highly-publicized state criminal proceeding initiated against the then-starting quarterback of the University’s football team.  His request for records named the student specifically.  The trial court granted summary judgment to Krakauer and ordered the University to make the requested records available for inspection, subject to redaction of student identifying information.  The University appealed.

Reversing and remanding for further proceedings, the Supreme Court of Montana considered whether the Family Educational Rights and Privacy Act of 1974 prohibited the University from releasing records responsive to Krakauer’s request because he had identified the student by name.  FERPA prohibits educational institutions from releasing without consent personally identifiable information contained in education records, and conditions the receipt of federal funds on compliance with its directives.  The Court easily concluded that because the University receives federal funds, it had agreed to comply with FERPA and assumed the risk that funds can be withheld in the event of substantial non-compliance.  Citing the amicus brief filed by the Department of Justice, discussed below, the Court concluded that where a request targets education records relating to a particular student, identified by name, FERPA’s protections unquestionably apply.  The Court thus further concluded that had the university released the documents that Krakauer requested, it would have violated FERPA unless an exception to FERPA applied because Krakauer clearly knew the student’s identity.

While FERPA generally prohibits the release of student education records, there are several exceptions.  One limited exception provides for the release of the “final results” of certain disciplinary proceedings.  The Court was unable to determine whether the limited exception authorized the release of information related to Krakauer’s request because the record did not indicate whether, in the student conduct proceeding, the University ultimately determined that a violation had occurred. 

Another exception to FERPA allows for the release of information furnished in compliance with a judicial order or pursuant to a subpoena.  The Court explained that, in considering the question of whether a subpoena for student records should be enforced by a court, courts must undertake  a “constitutional balancing test” which should balance a student’s right to privacy against the public’s right to know.  The Supreme Court did not provide any framework or structure for such a balancing test, however.

The Court recognized that in the context of student records, national and state legislatures have established enhanced privacy interests of students in their records which must be factored into the balancing test.  The trial court, however, had concluded — in the authors’ views, erroneously — that the public exposure of the events in question meant that the student did not have a reasonable expectation of privacy regarding the records sought by Krakauer.  The Supreme Court made clear that it was concerned over the principles applied by the trial court, reversed the order, and remanded with instructions to conduct an in camera review of the documents to re-apply the (undefined) constitutional balancing test.  

Notably, a dissenting justice agreed that the University would have violated FERPA had it released records pursuant to Krakauer’s request, but disagreed with the Court’s decision to remand for in camera review.  Justice McKinnon asserted that when performing the balancing test in the case of student records, the court must consider the enhanced privacy interest afforded by the Montana legislature.  She also noted that a student’s privacy interest is not diminished if the information related to the records sought is already public or if there has been publicity about an event involving the student.  Because Krakauer identified the student by name, Justice McKinnon determined that remand for in camera review was improper because no redaction or other measure could protect the student’s substantial privacy interest due to the manner in which the request was made.

Finally, this case is of particular interest because the Department of Education, through the Department of Justice, filed an amicus brief with the court.  In its brief, the Government asserted that “where a request targets education records related to a particular student, identified by name, FERPA’s protections unquestionably apply.”  This assertion is supported by the DOE’s amendments to FERPA, which define “personally identifiable information” to include records that are requested by someone who, in the university’s reasonable belief, knows the identity of the student at issue.  See 34 C.F.R. § 99.3  (“personally identifiable information” at (g)).  Thus, redacting education records is always insufficient to protect a student’s privacy if the university believes that the requestor knows the identity of the student to whom the education records pertain.  The DOE and DOJ also made plain their position that in light of that conclusion, and the primacy of the Supremacy Clause in matters of conflicting state and federal law, the records could not be released consistent with federal law.  

The question of how state open records laws intersect with FERPA is in many ways a state-by-state issue, but the issues raised in Krakauer are useful to take note of for higher education attorneys in all states in light of the increased media scrutiny that has accompanied institutions’ efforts to comply with Title IX and other federal laws.  In particular, the Education and Justice Departments’ observations about FERPA and the Supremacy Clause provide some comfort to institutions facing similar requests under different state laws.  The authors will continue to monitor this important and evolving area of law. If you have any questions about FERPA, open records laws, or this article, please contact the authors or your regular contact in Saul Ewing’s Higher Education Practice.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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