Q: The City has an employee reimbursement education program for college credits. Part of the city’s requirement for reimbursement is a minimum C grade.
I made a public records request for the elected City Clerk and I’m told her grades are confidential by some Federal Statute. She has objected to my obtaining this information. Is she protected from disclosure?
A: The Federal Educational Rights & Privacy Act (FERPA), 20 USC section 1232g; 34 CFR Part 99, is a federal law that sharply limits the ability of educational institutions receiving funds form the federal government — which is essentially all public and private educational institutions in the country — from releasing student academic records without the consent of the adult student or the parents of a minor student.
FERPA is incorporated into the California Public Records Act by Govt. Code section 6254(k). So if you were requesting the information from the school directly, it would be barred by FERPA from releasing the information without the clerk’s authorization.
Your question is interesting however because it seems you are not seeking the information from the educational institution but from the city.
Whether the information remains protected by FERPA will depend on how the city obtained the information. If the clerk herself provided the information to the City and waived her FERPA rights in so doing, then that waiver may apply to all subsequent requests for the information — unfortunately the law is uncertain here.
However, FERPA does contain several exceptions whereby educational records can be shared on a limited basis among governmental entities for purposes such as student financial aid. When the information is shared under one of these exceptions, there is no waiver, and the governmental agency that receives the information is bound by FERPA’s privacy restrictions in the same way that the educational institution is bound.
Your best option then might be to exert public pressure on the clerk to authorize the release of her academic records.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.