FOIA Audit 2018
CMU Chapter's Sexual Assault Inquiries
What is FOIA?
In addition to the federal Freedom of Information Act (FOIA), each state has their own law for requesting state government records and information.
In some states, such as New York, it is referred to as Freedom of Information Law (FOIL) or in others it is simply open records, such as in Ohio. Either way, it is the same general idea – access to information for the benefit of the general public.
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Anyone can submit an open records request, but often it is journalists who are requesting information to share with the public. Requesting records that otherwise wouldn’t be in the public eye can help shed light on topics such as university spending, government budgets, and crime reports.
Exemptions to Public Records:
Universities and colleges that receive federal funding must abide by the federal FOIA law, however there are a few exemptions to open records request.
Typically the exemptions protect national security or the privacy of individuals.
One common exemption usually cited by FOIA officers, is the Family Educational Rights and Privacy Act (FERPA). FERPA protects a student’s information and allows their parents to view their educational records.
Just how much information this law protects has been a debate that has sometimes ended in court cases. In Baur v. Kincaid (1991) a Missouri district court found that a public university newspaper may obtain and publish criminal investigation and incident reports from campus security, and in Red & Black Pub. Co. v. BD. Of Regents (1993), the Georgia Supreme Court found that student court records were subject to the state’s open records law.
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In more recent years, the Iowa Supreme Court ruled in Press Citizen Company Inc. v. University of Iowa (2012), that university records concerning a specific sexual assault case were protected under FERPA.
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In 2011, The Chicago Tribune sued the University of Illinois, who cited FERPA, while barring the release of admission information. The federal district court ruled in favor of the Tribune, citing that FERPA did not bar the information from being released, however the Seventh Circuit court remanded and threw out the case, arguing that the federal court did not have jurisdiction. It left the matter largely unresolved.
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“FERPA has turned into this catch all privacy law. It’s a little bit like Rorschach Test - it is whatever the hell they want to see in it,”
said Jonathan Peters, the press freedom correspondent for the Columbia Journalism Review, and media law professor at University of Georgia’s Grady College of Journalism and Mass Communication.
Cost:
While there is no required cost for FOIA information, many agencies will request a fee for each page of copy, or for the labor and effort put in to compiling the requested records. The requester may ask that the fees be waived in the interest of serving the public with the information.
Some places will charge a set fee of so many cents per page, while others can give costs estimated in thousands of dollars, with little explanation as to how they arrived at that price.
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“It is not a wild or crazy thing for a government agency to send you a fee or a cost estimate based on man hours, copying costs, and then any other costs associated with the finding of the records that you requested,” Peters said.
Issues with FOIA:
While FOIA seems straightforward, when put to the test it is not as black and white, and this was evident in the results of our audit.
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Two of the three Michigan schools that we requested information from did not comply - meaning they denied our request outright or failed to give us the information we asked for. The other, Eastern Michigan University, asked for $335.75 in exchange for the records.
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With that said, seven other schools did comply and in a timely matter, although some reports were heavily redacted. The final two schools have requested more time.
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“It’s supposed to work in such a way that citizens can have access to what their government is doing. It doesn’t always work that way obviously.” - Public Affairs Manager for the Michigan Press Association Lisa McGraw.
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This is not a new problem, nor is it unique to the Midwest, noted Peters, who has worked all over the country.
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“I’ve been around enough universities now, to have the impression that lack of training seems to be a big problem,” Peters said. “Well I would say two problems – lack of training and an increasing commitment of the part of universities to their brands. What I mean by the latter is if a university perceives a threat to its brand equity and what might come out of a public records request, then they’ll fight you on it.”
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Peters believes there are underlying political, legal and sociological reasons for the compliance problems when it comes to requesting public information.
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“I don’t know if this is the optimist in me or if it is the fool in me, but I try to convince myself that the compliance problems we have in colleges and universities are not the result of Darth-Vader-like, evil-doing, secrecy-loving, bureaucrats,” Peters said.
However, in the last few years he has been amazed by the various ways government agencies extend energy trying to prevent the public from seeing public information. Recently, he has even seen instances where record requestors are being sued.
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“That is not how public records laws are supposed to work,” Peters said.