November 29, 2020

EPISODE 11

What the heck is FERPA?

By Sara Ganim

Runtime: 00:41:11

Below is a transcript of episode 11. We encourage you to listen to the episode. It was written to be heard, not to be read. 

Sara Ganim narration: There are so many examples. 

CBS5 report: A local family says they are trying to piece together what happened after their son was very badly injured on a playground.

Sara Ganim narration: Of FERPA gone wrong. 

KIIITV report: The Austin-American Statesman is suing the University of Texas. It is because the school will not release records related to students disciplined for sexual misconduct. 

Sara Ganim narration: We tried to compile a list of worst cases. 

CNN report, Kendrick Johnson’s dad’s emotional plea: I want to say to the school, to the sheriff’s department, give us the video tape. 

CNN report: The school district’s attorney says they don’t have to release it because it is considered an academic record. 

Sara Ganim narration: But honestly, the list was too long. 

FOX17: “One of the things you try and do is keep it confidential for the students, there’s a lot of Title IX and FERPA requirements so we wouldn’t want to do anything that would identify her as a victim.”

Sara Ganim narration: And so, in this episode. 

James Buckley: There was an education bill coming along. So I offered my proposal as an amendment to that and the Chairman of the Education Committee liked it and accepted it.

Sara Ganim narration: We are taking a step back. 

Amelia Vance: So the Family Educational Rights and Privacy Act, FERPA was passed in 1974, and there’s a lot of, not quite myths, but there’s a lot of information around it that isn’t always entirely accurate.

Sara Ganim narration: To look at the history of this privacy law, which so many universities are using as a shield of armor. 

Laura Dunn: In my experience and in many cases schools use FERPA as a shield.

Sara Ganim narration: Reporter Camille Respess is taking us back five decades in order to figure out, what the heck is FERPA? And how did we get to the point where no one can agree on what it really means?

Camille Respess narration: To untangle the complex web of FERPA, we really have to start in the United States Capitol, in 1974.

A Junior Senator from New York named James Buckley, had an idea to give parents and students better access to school records. 

He was primarily concerned that schools were keeping secret information about student behavior, and potentially sharing it with law enforcement and other outsiders without the parents’ consent.

You know how you see in movies sometimes, big ideas that start with a couple

of people making notes on the back of a napkin. Well, in the halls of congress, urban legend is that, that’s pretty much how FERPA was born, too.

Buckley says he doesn’t exactly remember, but the story goes, that he scribbled together an idea on the back of a piece of paper.

Either way, it was definitely a spur-of-the-moment thing.

And from that, an amendment was born. 

From the University of Florida’s Brechner Center for Freedom of Information, I’m Camille Respess, and you’re listening to an episode of ‘Why Don’t We Know’ the podcast that dives deep into data and comes out with real stories. 

James Buckley: Hello

Camille Respess: Hi, Senator Buckley. This is Camille, how are you doing? 

James Buckley: Hi, fine, thank you. 

Camille Respess: Good, good. 

Camille Respess narration: James Buckley is now 97-years-old, and he admittedly doesn’t think much about FERPA anymore. 

But when I reached him over the phone from his apartment at a senior living center in Bethesda, Maryland in October, he was gracious enough to share what he still remembers about the law that was commonly known as his namesake. The Buckley Amendment.

James Buckley: I ran into situations where schools were refusing to provide

parents with assessments of their children uh, that were causing the schools to make decisions that were not necessarily in the children’s best interests. And uh, so my primary concern was to require schools to provide parents with every bit of information they had about about their, children.

Camille Respess narration: He took his concerns to the oval office. It was May of 1974, just two months before President Richard Nixon was forced to resign. 

Buckley mailed a letter to Nixon, spelling out why FERPA should exist in his eyes. 

James Buckley: Mr. President, as more stories come out in the media about the abuses of personal data by schools and government agencies, the public and congress have come increasingly aware of the problems such abuses pose. In addition, the revelations coming out of Watergate investigations have underscored the dangers of Government data files, and have generated increased public demand for the control and elimination of such activities and abuses. It is appropriate, therefore, that we take this opportunity to protect the rights of students and their parents and to prevent the abuse of personal files and data in the area of federally assisted educational activities. Many absurd and sometimes tragic examples of similar abuses exist.

Camille Respess narration: Buckley went on to tell Nixon about a case in New York, where a student was prevented from graduating because of quote “bad citizenship,” but her parents couldn’t see the file with the so-called transgressions.

James Buckley: In this Catch-22 case, one of the few to get a legal hearing, the New York State Commissioner of Education, Ewald B. Nyquist, stated flatly that the school’s argument that it was acting in the best interest of the student in refusing to reveal the information to the parents, had simply no merit. The commissioner concluded “It is readily apparent that no one had a greater right to such information than the parents.”

Camille Respess narration: Buckley’s amendment was attached to the Education Amendments of 1974, and it passed easilyNewly-sworn President Gerald Ford signed it just two weeks after he took over as president. But if you fast-forward 50 years, it’s pretty clear, that what Buckley said about his intention

James Buckley: To require schools to provide parents with every bit of information they had about about their children.

Camille Respess narration: It’s pretty much the opposite of what we’ve seen FERPA actually accomplish. 

For example I asked him about the Moore’s case in Arkansas where a student fell on the playground and doctors couldn’t see surveillance footage of what happened because other students were in the video too.

James Buckley: That was, that is outrageous that they should be denied that information.

Camille Respess narration: But Buckley is also the first to admit

James Buckley: Well, I haven’t followed it over the years. 

Camille Respess narration: He hasn’t really been keeping up with the evolution of FERPA.

James Buckley: Uh, in fact, it’s been many years since I was concerned. 

Camille Respess narration: And so I turned to an expert who did to help fill in the gaps. Her name is Amelia Vance. 

Amelia Vance: I am the director of Youth and Education Privacy at the Future of Privacy Forum, which is a nonprofit organization that works on consumer privacy issues.

Camille Respess narration: Vance just wrote a law review article about the winding history of FERPA so she’s the perfect person to talk us through it. 

Amelia Vance: Let’s do it. Always love to geek out about FERPA.

Camille Respess: So obviously we’re here today to talk about FERPA. Can you explain to me what FERPA even is?

Amelia Vance: So the Family Educational Rights and Privacy Act, FERPA was passed in 1974. And this was an insane time in American history. 

Nixon’s resignation: I have concluded that because of the Watergate matter

Amelia Vance: You had Watergate occurring, 

Nixon’s resignation: Therefore, I shall resign the Presidency effective at noon tomorrow. 

Amelia Vance: The prior year you had reports that the FBI had files on congressmen among others. So there was a lot of mistrust of government and the mistrust of secrets. You had debates about the fact that you have computers really for the first time being talked about on the congressional floor. And even though they filled a room, people knew that the computers would shrink down. They didn’t perhaps know they’d fit in our pocket. But they knew that as records became computerized, digitized, that this was going to change things. So you really had people thinking about the future of education records in a way that’s really incredible to look back on today. And trying to do it in a really nuanced way. FERPA also had a really interesting legislative history because it doesn’t have much of a legislative history. 

Camille Respess narration: This is true. As Buckley explained it to me, FERPA was passed pretty simply. 

James Buckley: There was an educational bill uh, coming along. So I authored my proposal as an amendment to that and the, the chairman of the education committee uh, liked it and accepted it. 

Amelia Vance: It was passed incredibly quickly. It wasn’t really passed with feedback from the stakeholders who it would govern; school districts, universities, individual teachers.

You have barely any information in the congressional record. There were no hearings about it. And what is there is senators pushing back on several provisions in this law and saying, “We think this may lead to unintended consequences.” We think this law may be too broad. 

Camille Respess narration: What’s so interesting though, is that even though Buckley was the amendment’s original sponsor, he didn’t even end up voting for it. Ultimately, he didn’t think the federal government should have such a hefty say in education. At the time, he saw education as a state-level issue. 

James Buckley: Uh, but I must say, confess that uh, as it was accepted, I voted against the bill as amended because I do not believe uh, the US government has the Constitutional authority to concern itself with education, which is a state priority.

Camille Respess: Going back to 1974, what did FERPA change during that time? And how did the Buckley Amendment change the game for student privacy and education privacy?

Amelia Vance: It made schools pay attention more than anything else. You had this fear in the wake of the law being passed that all federal funding was going to be taken away from districts or others for sharing information inappropriately. And can we even say a student’s name in the hallway or in class. 

But overwhelmingly, it was making schools put processes and procedures in place to provide what they should have been providing all along, which is that access by parents, by students themselves of their record. Making sure that they’re not inappropriately sharing information whether with CIA or FBI, or more realistically with the cousin of the principal who’s the police chief that they’re documenting when there is sharing of information that students are able to push back when the school says that they may not be able to graduate or they don’t get a job because of something in this record that they can’t see.

And so it really in many ways righted a balance that really hadn’t been in place making sure that students and parents were considered vital stakeholders in all of that is probably the biggest help that FERPA provided.

Camille Respess: But the rushed birth of FERPA quickly began to show. Flaws emerged, and in 1990, when the campus security act passed a law better known as the Clery Act it exposed a major problem with the law that it protected police records that otherwise should be public.

A student editor at Southern Missouri State University sued over this in 1991. 

Amelia Vance: The student journalist had filed a case against the school arguing that

the school policy against releasing campus security reports constituted a violation of student’s free speech, free press and that withholding the records was a violation of the state’s public records act.

Camille Respess narration: The Department of Education stood by the university, fighting her lawsuit .. 

Amelia Vance: And the court found that under the state’s public records act, the records

sought were public records.

Camille Respess narration: When the school lost, the federal government was forced to change the statute.

Amelia Vance: And what this case shows I think pretty clearly is that you can’t have it

both ways. 

Camille Respess: But still 30-some odd years later, there are police departments who will tell you can’t have these records because of FERPA. How does that still happen?

Amelia Vance: This is partially because the law isn’t the easiest to understand. So you end up with people who haven’t read the law enforcement unit information. 

Camille Respess narration: In 2002, FERPA was challenged once again when a parent in Oklahoma and a school district took their disagreements over what FERPA means all the way up to the Supreme Court. The case is Owasso Independent School District v. Falvo. 

Owasso v. Falvo: The issue presented by this case is whether Congress, in enacting the Family Educational Rights and Privacy Act, intended to prohibit the common and longstanding practice of peer grading of routine homework papers, quizzes, and tests.

Camille Respess narration: It was about whether students can grade each other’s quizzes in class.

Amelia Vance: So Owasso was a case where a parent was very upset that their child’s paper had been peer graded, and said that this was a violation of their child’s privacy, that somebody else had been able to see their child’s work and grade it. And wasn’t this exactly what was covered under FERPA. And the Supreme Court said in their interpretation of the statutes that no, until the school maintains the information, the information is not covered under FERPA.

Owasso v Falvo: By explaining the answers of the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on. We do not think FERPA prohibits these educational techniques. Respondent’s construction of the term education records to cover student homework or classroom work would impose substantial burdens on teachers across the country.

Amelia Vance: This threw everybody into an uproar because, exactly how far does that decision go? It’s definitely personally identifiable. It’s definitely something that’s about to become part of the education record, but it’s not there yet. It’s held by their peers. It’s not held by their teacher or held by their schools, and therefore it is not covered by FERPA.

Camille Respess Narration: That same year in 2002 another FERPA case at Gonzaga University, found that there is no such thing as a FERPA lawsuit, meaning that if a student’s FERPA rights are violated and personal information is over-shared or under-disclosed they can’t sue for recourse. 

The only thing they can do is file a complain with the Department of Education.

And with these two cases 2002 becomes a really important turning point for FERPA. 

All of the sudden, there is no more risk. Schools are now free to categorize everything as a FERPA record, without having to then turn around and disclose it to students when they ask for it.

Camille Respess: So something where schools shouldn’t be able to have it both ways,

How does this lack of clarity that you mentioned affect the application of FERPA?

Amelia Vance: There are many complaints that I’ve heard about that come before the

department of ed that are just about the lack of training on the things that we do know, the clear black letter law of how FERPA applies. There’s a lot of parts of the law that are very clear and are not at all understood. Because why would they be if you don’t train people on them? 

People don’t know what the law says, and they aren’t trained on it. In particular, campus security officers aren’t trained on it. Oftentimes deans and even professors may not be trained on it. Or if they were, it was a one hour click through session. Not that that’s bad because at least it’s something, but a one hour session where it was all about “don’t show your students’ grades.” It’s incredible how little preparing people to teach or to work in education involves teaching people about student privacy and about FERPA. And I think that is a massive part of the reason why it is still so widely misunderstood.

Camille Respess: There’s a ton of stories about FERPA misusage in both K-12 and higher education. How does that happen?

Amelia Vance: Again, it really comes back to that lack of training. It’s really genuinely people who are afraid that they’ll lose federal funds. People who are trying to protect student privacy the best way they know how. But it’s also in some cases used inappropriately as a shield against accountability. And there’s a lot of incentives to holding up privacy as a shield to say that, “we’re protecting people and you’re trying to tear down our shield of privacy,” because it makes them look pretty good and everyone else look pretty bad. And that’s not right or fair, and the lack of training, the lack of quick turnaround and explaining how FERPA works on the ground means that a lot of times it takes a long time to get the school to back down and say, “Okay, I guess FERPA doesn’t cover this.” So that’s something that really does need to be fixed.

Sara Ganim narration: The most interesting FOIA that I filed during this project was to the U.S. Department of Education.

I asked them for the records of all the times that an educational institution has been punished for violating FERPA. Since every school seems to be so terrified of it, bending over backward to comply, you’d think the Department of Ed must have a pretty nasty bite, right?

No. The answer is no. 

Never in the 46-year history of the law has anyone ever lost funding, or even been fined, for violating a students right to privacy.

And let me just say up front that it’s not because no school has ever violated a students right to privacy. There are plenty of examples of times where schools most certainly should have gotten into trouble for violating FERPA

And there is no better case study on this than at the University of Iowa.

Once again, here’s Why Don’t We Know reporter, Camille Respess with the story.

Camille Respess narration: When he envisioned the law in 1974 Sen. James Buckley wanted one thing.

James Buckley: To provide the parents with the right to have information about their children.

Camille Respess narration: Since then we’ve seen so many examples of universities doing the opposite relying on FERPA to shield information.

But what about when they ignore FERPA and give out information they actually aren’t supposed to share? 

In the span of six years, the University of Iowa did both.

In 2007, they refused to hand over records about the mishandling of a sexual assault investigation involving two football players, a fight that went all the way to the State Supreme Court. 

But in the meantime, officials were handing over student records to the sheriff’s office when students were applying for gun permits a clear violation of FERPA.

I asked the two reporters who covered these stories to sit down with me and talk about two FERPA cases that seem to contradict each other. 

Clark Kauffman: I’m Clark Kauffman. I work for the Iowa Capital Dispatch as a reporter. I did work for about 18 years at the Des Moines Register, and a little about 11 years before that, I worked at the Quad-City Times in Davenport, Iowa.

Lee Hermiston: I’m Lee Hermiston. I’m currently a reporter at The Gazette, which is based in Cedar Rapids. I work out of the Iowa City Newsroom. 

Camille Respess: You both have been covering Iowa for years for different newspapers, but I know the reporter circle can be small, so I wanted to start by asking, you two must know each other, right?

Clark Kauffman: Well, just yeah, professionally of course. Yeah, that’s about the extent of it. I don’t get out much, but yeah, professionally.

Lee Hermiston: I’m going to put Clark on the spot a little bit here and just say that, Clark has a pretty legendary reputation in the State of Iowa as being a really tremendous investigative reporter. Every one of my colleagues knows Clark’s byline well and really respects the work that he’s done. I know Clark probably won’t pat himself on the back too much, but I certainly will, especially his work at The Register was very, very good and very inspiring.

Camille Respess narration: Clark Kauffman and Lee Hermiston work at different news organizations, but separately, they’ve covered two really significant controversies at the University of Iowa, which pretty much sums up why FERPA is broken.

This story begins in 2007, when Lee was a young crime reporter at the Iowa-City press citizen, and two football players were dismissed from the team around the same time that a student athlete reporterd a rape on campus.   

Lee Hermiston: In Iowa, where we don’t have a professional football team, baseball team, anything like that, the Hawkeyes are really king here. It didn’t take long for the rumor mill to start up on that and really connect the players being dismissed and this investigation at the dorm.

Camille Respess narration: So Lee did what a good reporter does, he filed open records requests to try to figure out what was going on. 

I bet you can guess what happened. The requests were denied, based on FERPA, even though, at this point, the player’s names were all over the press. 

Camille Respess: Initially, they only handed over 18 pages of documents, a lot of which was redacted as well. Was it surprising to not get those records?

Lee Hermiston: We felt that there should just be more there, and we knew they were keeping more. Our thought was that their excuse is that it was all covered by FERPA, just didn’t hold water and that there had to be more. 

Camille Respess: And then, in January, in 2008, the Iowa City Press Citizen filed that lawsuit, and I’m going to quote it here, “To obtain records relating to the school’s investigation into the alleged sexual assault when the University of Iowa failed to deliver all of the requested documents within the 20-day limit.”

Lee Hermiston: So, there were a lot of late nights.

Literally, my editor was on the phone with our lawyer going through it line by line. Just late nights, waiting for our editor to get off the phone with the lawyer and say, “Yes, we can do this. Yes, we can’t.” 

Camille Respess narration: The efforts might have felt exhausting but they knew they were on the right track, especially after an unexpected phone call to the newsroom.

Lee Hermiston: The mother had reached out to us one night, basically just cold called the newsroom and identified herself as the mother of the victim of sexual assault, and essentially gave an interview to one of our reporters and said that she had sent this letter to the university officials that we weren’t aware existed. I believe the university all along had said the victim was leading the process, the victim was happy with how everything was going. I believe they called it a victim-led process or investigation. We were led to believe that the family was all very happy. 

The mother said, “No, that’s not at all what’s going on, and they’ve basically abandoned my daughter, she has left school,” and were very disenchanted with the University of Iowa.

After a day or two of reporting on our end to verify that the woman was who she said she was, that the letter had indeed been received by university officials, and just frankly, lawyering up a little bit, we published the letter in full in The Press Citizen. That really kicked that whole case up into another level. A month or so later, the football players were actually charged. 

Camille Respess: About this letter, interestingly enough, a couple of days after, you all published it, the university made the letter public themselves, even all the while The Press Citizen is sending in all of these records request to get information relating to the same sexual assault case that they were refusing to hand over, but then they went ahead and published this letter without the mother’s permission. 

Lee Hermiston: We were like, hey, this was private or protected for the last six or seven months. Why is it suddenly open for everyone? They essentially said, “well, you published it for us. You made it a public record for us,” so they were just following our lead.

Camille Respess: Do you remember what you felt about that at the time, considering that the university was barring you from certain information they were claiming was protected under FERPA, but meanwhile, took the go ahead and published this specific letter?

Lee Hermiston: Honestly, what I really remember about that time is that it was a really exciting time to be a reporter. We knew that we had a very, very, very big story on our hands. There were some very, very big allegations involving some big people. Like I said, Hawkeye football is the biggest thing in the state. The letter specifically named the Hawkeye football coach, who was a revered person. We knew then that this was going to be a big, big thing, it was just exciting ,every day there was something new developing, a new story to chase, a new angle to chase. It was in the middle of a historic flood and other things going on, and honestly, it was only the beginning of my second year full time of being a reporter, so it was just an exciting time of being a reporter, and It really was validating that this is what we signed up to do.

Camille Respess: In 2012, the Supreme Court in Iowa comes back and ends up siding with the university, saying basically that if the university says it’s covered by FERPA, then it’s covered by FERPA. 

Lee Hermiston: We got what we wanted and we got the stories and we had people held accountable. There wasn’t really a sense of defeat. It was just a matter of resolving the case, I suppose.

If I worked for another 20 or 30 years, hopefully, and that’s still one of the stories that I’m known for, I’m very proud of the reporting we did there. Because you can really point to that and say, there was someone who was wronged, and through our work, they maybe got a peace of mind out of it, or a sense of comfort that they wouldn’t have otherwise, because the university ignored them and ignored their concerns, and we brought that to light, which is what we, as reporters, are supposed to do.

Camille Respess narration: But the ruling set a legal precedent, and that’s really important to note because it can have an effect on other cases in the future. That universities can use FERPA to keep the public from getting these kinds of documents.

And maybe there is an argument in there that’s valid, that FERPA did apply and that student information should have been protected. But what makes this story so fascinating is what Clark Kauffman uncovered, just a year later, at the very same university.

Camille Respess: Clark, you’re covering a case at the very same university that seems to fly in the face of the decision that Lee just described. The reporting that the University of Iowa was handing over confidential student information and educational records to the Johnson County Sheriff for students who are applying for gun permits. Can you walk me through this investigation starting from the beginning? How did you figure out this trend and how was the university caught?

Clark Kauffman: Yeah, we found out that when the Johnson County Sheriff would get an application for a gun permit, he would check the name on the permit application against the roster of students, and faculty, and staff at the University of Iowa.

If the applicant happened to work there or be a student there, he would request whatever information the university was willing to share. Usually, that request was routed to the University Law Enforcement Agency. Then from there, it went up to the university hierarchy. But yeah, the university would respond without ever having even seen this application from the Sheriff’s department, without ever having seen a waiver of any rights to protect this information. The university would simply forward whatever information they had on the student to the Sheriff’s department. That would include academic performance and disciplinary information, and any other information that the university thought that the Sheriff might want to have. But it was very quickly after we wrote about this and disclosed it that the university started to re-examine what it was doing.

Camille Respess: Can you tell me, was Lee’s reporting top of mind for you back then? Did you make any connections there?

Clark Kauffman: Well, I did. I was certainly aware of Lee’s reporting on that story, but going back even further, I’d had all sorts of issues with the University of Iowa and other public entities in the state, just in terms of how they shared information that was supposed to be kept confidential and how they kept confidential information that theoretically should be made public. This particular story I wound up dealing with both sides of that issue.

Most of the students I talked to, as I recall, they didn’t have anything specific in their history or background to be concerned about, but I believe all of them, all that I can recall did have a real concern that the information was even flowing from the school to the Sheriff’s Department.

I think once these stories were on the front page of the De Moines Register, it did cause the university officials to take a serious look at the fact that they were sharing information that students had not explicitly authorized disclosure of. 

Camille Respess: So, Lee, the reporting you did, the University of Iowa was using FERPA to withhold information, which led to a case that went all the way up to the Iowa Supreme Court. Then Clark, you were investigating the university of Iowa for basically doing the opposite, giving out student information protected under FERPA. I’m an outsider. I’m looking at this as an armchair quarterback, and it’s pretty surprising, but I want to know from you guys who lived it. Was there ever a moment where either you were like, wait a second, what is going on here?

Clark Kauffman: Well, in my case, I certainly had that thought because yeah, the university had already decided that it wasn’t a FERPA violation to share this information with the Sheriff’s office. But when we went to the university and said, okay, we’d like you to send us all the communications you’ve had with the Sheriff’s office about these gun permit applications, the answer that we got back initially was no, that’s covered by FERPA. They were playing it on both sides. On the one hand, they said FERPA doesn’t cover the release of these records and therefore we can give them to the Sheriff, but on the other hand, FERPA does cover these records and were not going to give them to the newspaper.

We did get some of the emails that we were requesting through the Sheriff’s office, which of course, doesn’t have to deal with FERPA issues, it has to deal with the Iowa Opens Records Law. Fortunately, we got some of the basic communications that way, but yeah, there was a lot of consternation over the university’s interpretation of FERPA.

Lee Hermiston: There was maybe some scoffing or some eye rolling over the University of Iowa’s use of FERPA, because at any given time, we would get a press release saying such and such football player is an honor student and is getting this GPA and all this and that. They would gladly share student educational records when it served their purposes. If it made the university look good, then FERPA was never an issue, but the second they didn’t want something shared, or least, then it was just this broad really misused interpretation of the law. I think the university and the other entities just kind of say, hey, challenge us then. Make us give it to you, because we’re not going to do it willingly. Unfortunately, it takes lawsuits sometimes, or it takes really dogged reporting like Clark does.

They’re not going to just roll over and say, “Okay, well you make a good point. We’re going to let you have it. It takes a lot and really making them show their work and say, “Prove it.” They just say, “No, we don’t think so. You don’t like it, sue us.” Most media outlets just don’t have the resources. The Press Citizen and The Des Moines Register are both backed by Ginette and have a little more, some resources, but basically, we’re banking on getting our legal fees covered. If we hadn’t, I think we paid something like, well, no, I don’t want to say how much we paid, because I don’t recall. But we’re probably talking about the reporter’s salaries.

They were going towards, or the equivalent of that, going towards legal fees. When you’re as small as The Press Citizen, you don’t have that kind of breathing room. I’m fortunate to have worked with very bold editors who were not afraid to say, “No, you’re wrong and we’re going to prove it.”

Clark Kauffman: I always thought, piggybacking on what Lee just said, that the galling part of this too, if you’re a reporter, or you’re a member of the public, is that these public entities like the university, when they challenge you and say, “No, you’re going to have to sue us if you want this information,” basically they’re doing that at the time taxpayer’s expense. The taxpayers are having to foot the bill for having been denied the information, and they have to foot the bill for all of the court costs and expenses that the university is pursuing to keep the information out of the hands of the public. These public agencies have, there’s real no disincentive, financially at least, for them to not withhold the records in that fashion.

Camille Respess: I’m curious, would you call this a hypocrisy?

Clark Kauffman: Well, in my case, I would, simply because of the way they were using FERPA to share information with the Sheriff’s office, but withhold that same information from the general public and the media. Yeah, I see a real contradiction there, and I also hear a lot of pledges to support openness and transparency from the very same people who are denying access to information. Yeah, I would interpret that, that way.

Lee Hermiston: Yeah, I’d agree, definitely in Clark’s case, it’s very hypocritical. In our case, I think it was just yet another case of FERPA being used far, far, far too broadly. Unfortunately, this ended up being a big story, but this is not unique in any way that institutions like that use FERPA very broadly.

Sara Ganim narration: We’ve already told you the end of this story. 

The Department of Education has never fined a single school for giving out personal information like the University of Iowa gave to the Sheriff’s office. 

Even though it’s one of the most glaringly obvious violations of FERPA that we found during our research, there was still no punishment.

And it begs the question: Why? Why are universities so scared? Why are they hiding things that relate to public safety? If FERPA has no teeth, why are schools behaving this way? Fear. The answer is fear.

That’s next time, on Why Don’t We Know. 

This episode was reported by Camille Respess

And produced by me, Sara Ganim.

The associate producer is Tori Whidden.

This episode was edited by Amy Fu.

Music for this episode was composed by Daniel Townsend

Audio mixing was done by James Sullivan.

The executive producer is Frank LoMonte.

‘Why Don’t We Know’ is a production of the Brechner Center for Freedom of Information at the University of Florida.

A special thanks to the Hearst family foundation for proving the grant money that supported this reporting.

For more information, please visit our website at www.whydontweknow.org