Education Records Are Subject to FOIA Requests
In an unpublished decision, on December 17, 2019, the Michigan Court of Appeals issued an opinion that education records are subject to disclosure under Michigan’s Freedom of Information Act (“FOIA”) with redaction of personally-identifying information. Kalamazoo Transportation Association, MEA/NEA and Kalamazoo Public Schools, LC #2018-000530-CZ (Mich APP, 2019) (unpublished). The Kalamazoo Transportation Association, MEA/NEA (“Association”) requested copies of bus driver student disciplinary forms that were completed when a bus driver referred a student for discipline. The Kalamazoo Public Schools (“District”) treated this form as an initiation of disciplinary action against a student and considered it as part of the student’s disciplinary record and, accordingly, part of the education record. Hence, the District denied the Association’s request, citing the exemption under Section 13(2) FOIA that exempts from disclosure “information that if released would prevent the public body from complying with 20 USC §1232g, commonly referred to as the Family Educational Rights and Privacy Act of 1974.” MCL 15.243(2).
The Association filed legal action under FOIA in the Kalamazoo County Circuit Court. The Association asserted two arguments. First, the Association argued that the bus driver student disciplinary referral form was not an education record. In the alternative, the Association argued that even if it was an education record, the District had an obligation to redact any personally identifying information and to disclose the non-exempt information.
The District asserted that student disciplinary forms are education records and automatically exempt under Section 13(2) of FOIA. The District argued that FOIA incorporates the definition of education record under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), which defines an education record as “any record, file, document or other material containing information directly related to the student and which is maintained by the education agency as an education record.” 20 USC 1232g(a)(4)(A). Further, the District argued that under 20 USC §1232g(b)(1), FERPA prohibits an educational agency from releasing “education records (or personally identifiable information contained therein) other than directory information . . . without the written consent of their parents to any individual agency or organization . . .” Therefore, FERPA protects the confidentiality of education records and the personally identifying information contained within the records.
The Kalamazoo County Circuit Court agreed with the District’s legal positions. The Kalamazoo County Circuit Court awarded summary judgment in favor of the District. The Association appealed to the Michigan Court of Appeals.
The Michigan Court of Appeals reversed and remanded the case back to the Kalamazoo County Circuit Court. The Michigan Court of Appeals agreed that the bus driver student disciplinary referral form was an education record for the purposes of FERPA. However, relying on MCL 15.244(1), the Michigan Court of Appeals ruled that a public body is required to separate exempt from non-exempt material and make the non-exempt material available for examination and copying. The Michigan Court of Appeals rejected the District’s argument that the exemption contained in Section 13(2) precluded disclosure of education records as well as personally identifying information from those records. The Michigan Court of Appeals treated the exemption as applying only to information in the records and not the education records themselves.
Although this is not a published decision, the Michigan Court of Appeals’ ruling has the potential for significant impact on FOIA administration for public school districts. A public school district can no longer rely on an education record as being automatically exempt under FOIA’s Section 13(2) exemption. Instead, the school district will have to examine an education record to redact personally identifying information from non-exempt information and then disclose the non-exempt information.
If you have any questions regarding this Michigan Court of Appeals case or its potential repercussions, please feel free to contact your Clark Hill PLC education law attorney.