08182017Headline:

1st District Court of Appeals Reigns in the FERPA Bogeyman


Like HIPAA (the Health Insurance Portability and Accountability Act), FERPA (the Family Educational Rights and Privacy Act), is greatly overused by the custodians of public records throughout Florida as an excuse to violate the law.

The HIPAA argument is what launched my career in public records advocacy.  In 2008 School Boards around the state unsuccessfully attempted to frustrate my access to health insurance enrollment information based upon claims that it would violate HIPAA.  In the end, most School Boards abandoned those silly arguments and those that did not were disabused of their mistaken notions about HIPAA in the courts.

The same thing happens with FERPA.  When some educational institution does not want to produce records they just claim that the records are “educational records” and are therefore exempt.  I’m amazed at how loosely School Boards interpret what qualifies as an “educational record.”  If they were consistent then Year Books would be illegal.  I’m sure that won’t happen because then they could no longer get kickbacks from the publishers of overpriced Year Books. (That would be a fun project, by the way.)

In an important case, covered by the Florida Times Union (Jacksonville), the 1st DCA (District Court of Appeals) ruled that a student’s complaint, sent via email, about an instructor, isn’t an educational record and therefore is not exempt from disclosure.  The case should be instructive to School Boards around the state, but I doubt that it will be.  After all, when they deny access, most folks just slink away in defeat.  Even when someone vindicates the public’s right to access public records by taking errant officials to court, it’s our tax dollars that pay the freight.

Ironically, simply reading a few newspaper articles could save the public millions in legal fees.  Then again, when they’re playing with OPM (Other People’s Money) who cares?

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