19FC:0030 Courtney Crowder/Iowa State University - Probable Cause Report & Order

Date:
07/18/2019

Subject:
Courtney Crowder/Iowa State University - Probable Cause Report & Order

Opinion:

The Iowa Public Information Board

In the Matter of: Courtney Crowder, Complainant. and Concerning: Iowa State University, Respondent

Case Numbers:           19FC:0030             Probable Cause Order

This matter comes before the Iowa Public Information Board (IPIB) on this 18th day of July, 2019, to consider a Probable Cause Report.

The probable cause report recommended that there is probable cause to find a violation of Iowa Code Chapter 22 under Iowa Administrative Code 497-2.2(4)(d), based on certain underlying facts which were correct on the date it was written July 5, 2019.  It recommends designation of a prosecutor, direction of the issuance of a statement of charges, and the initiation of a contested case proceeding.

However, the IPIB finds that Iowa State University (ISU) has now released the information in dispute.  The IPIB therefore considers that in selecting a different legal remedy than that recommended in the probable cause report for reasons stated at the July 18, 2019, meeting.

Pursuant to Iowa Administrative Rule 497-2.2 (4) (c), the IPIB finds that there is probable cause to believe that ISU violated Iowa Code Chapter 22, but as a matter of administrative discretion, dismisses the matter.

So ordered this _______ day of July, 2019.

________________________________

IPIB Chair

CERTIFICATE OF SERVICE

This document was sent by electronic mail on the ___ day of July, 2019, to:

 

Joseph Quinn, Attorney for Complainant

Michael Norton, Counsel for Respondent

 

 

Before The Iowa Public Information Board

In the Matter of: Courtney Crowder, Complainant. and Concerning: Iowa State University, Respondent

Case Numbers:           19FC:0030             Probable Cause Report

SUMMARY:  Upon further review and investigation, I conclude that two of the original issues presented are now moot, but there is probable cause to believe a violation of Chapter 22 occurred.

Background Facts

On February 27, 2019, Courtney Crowder (Ms. Crowder), a reporter for the Des Moines Register, requested from Iowa State University (ISU) these items:

1. Emails between Jessica Stolee and Norma Dorado-Robles from 2017 through 2019;
2. The list of attendees to the Maize retreat in April of 2018;
3. List of attendees to CYLA retreats from 2014 (or their beginning) until now;
4. The 2018 4-H Customer Survey.

ISU acknowledged the requests on February 28, 2019.  ISU released the 2018 4-H Customer Survey on March 21, 2019.  Concerning the remaining requests, ISU responded on March 21, 2019, denying the requests for the lists of retreat attendees or copies of emails.  ISU argued that the retreat attendees’ names were protected information under the Federal Educational Rights Privacy Act § 513(a) 20 U.S.C. §1232(g); 34 C.F.R. §§§99.30, 99.31, and 99.37; Iowa Code §§ 22.7(1) and 22.7(9).  ISU also argued that emails constituted confidential personnel records under Iowa Code § 22.7(11).

The IPIB accepted the complaint on April 18, 2019.  Efforts to achieve an informal resolution were unsuccessful.

Investigation

I reviewed Ms. Crowder’s initial complaint, the ISU Counsel Michael Norton’s (Mr. Norton) response and Ms. Crowder’s reply.  I also reviewed the disputed emails confidentially under Iowa Code § 23.6(6). I read numerous news releases and public videos of student retreats on the ISU extension’s website. I analyzed documentation from Mr. Norton, and ISU’s student directory information disclosures.

I also reviewed numerous law and cases, including Iowa Code § 22.7(1) and FERPA, 20 U.S.C. §1232(g); and the Code of the Federal Register, 34 C.F.R. §§ 99.30, 99.31, 99.37.; Press Citizen Co. v. University of Iowa, 817 N.W. 2d 480 (2012).   I also read an Iowa Attorney General Opinion, 1980 WL 25998 Opinion No. 80-6-8.

Email Communication Records

On May 7, 2019, ISU sent the disputed emails for confidential review by the undersigned under Iowa Code § 23.6(6).  After my review and recommendations, the parties reached an agreement that ISU would release one disputed email and Ms. Crowder would withdraw her request for the remainder of the emails.

Because the parties have resolved the dispute over emails by agreement, the IPIB has no need to determine probable cause concerning this issue.

Chapter 22 Analysis of Adult Participants

I interpreted the initial request to mean that Ms. Crowder sought the names of all ‘attendees’ which means persons attending the retreats.  When I asked Ms. Crowder, she also clarified she sought the names of adult supervisors/organizers who attended the retreats in addition to minors.  The plain language of the request means Ms. Crowder intended to obtain the names of both.  On July 1, 2019, ISU released the names of 4-H adult staff who attended the retreats.  Ms. Crowder responded the list did not contain adult volunteers, chaperones, or parent helpers, just adult staff.  Mr. Norton then revised an additional list he said contains that information later on July 1, 2019.

Because ISU has released this information, the question is now moot. 

Chapter 22 Analysis of Minors Attending Retreats

Mr. Norton argued that the minors constituted ISU extension ‘students’ while they attended the retreats.  He stated that Iowa Code § 22.7(1) and FERPA 20 U.S.C. § 1232(g), and 34 C.F.R. §§ 99.30, 99.31, and 99.37, permitted and required Iowa State to withhold the minors’ names.  He also concluded because a large number of children attending retreats were of minority racial status that revealing their names would implicitly reveal their racial backgrounds.  Mr. Norton therefore argued revealing the minors’ names would violate their rights to educational privacy.

FERPA has a definition of ‘education records’ under 20 U.S.C. § 1232(g)(a)(4)(A) as follows:

For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which—

(i) contain information directly related to a student; and

(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.  (Emphasis added).

FERPA has a definition of ‘student’ under 20 U.S.C. § 1232(g)(a)(6)(A):

For the purposes of this section, the term “student” includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution.  (Emphasis added).

It is not clear if the children attending retreats acted as students because there is no evidence they attended classroom learning during the retreats.  One could argue the retreats were merely ‘events’ rather than classes.  Someone who attends a university as an employee to teach classes is not acting as a ‘student’ protected by FERPA even if they are administering a federally funded program and playing a role in the classroom.  If ISU invited a group of high school students to attend a football game together, this does not also make them ISU students. 

Although a university administers the 4-H program and attendees may be students, IPIB could still regard the minors’ names as public records.  The Iowa Supreme Court in Press-Citizen Company, Inc. v. University of Iowa, held educational records may be withheld under Chapter 22 if their release would violate FERPA.  817 N.W. 2d 480 (2012).  However, there is no indication the release of only students’ names violates FERPA or Iowa Code § 22.7(1) which allows schools to withhold student records.

The Iowa attorney general’s office has concluded that merely releasing student names does not violate Iowa Open Records laws.  1980 WL 25998, Opinion No. 80-6-8, June 18, 1980.  The attorney general’s opinion held that applied to students/children enrolled in schools statewide.  The opinion did not contain a caveat that if the students attended an inner city school that had a large minority population, an exception would apply because people might surmise the children were of minority heritage.

Mr. Norton submitted a supplemental memorandum of law where he argues that 34 C.F.R. § 99.3 FERPA defines an ‘education program’ to include any program that is principally engaged in the provision of education and any program that is administered by an educational agency and institution.  Exhibit A.  He also argued that the minors attending the retreats meet the FERPA definition of ‘student’ because they attended programs at ISU about whom ISU maintained records.   Mr. Norton concluded that the Department of Education has allowed educational institutions discretion as to whether someone constitutes a ‘student’ in attendance.  Mr. Norton said that even if the minors attending retreats attended no classroom events, because ISU used federal dollars to administer those retreats, those children still act as students.

The U.S. Department of Education regulations implementing FERPA, 20 U.S.C. § 1232(g), 34 C.F.R. § 99.37, allow schools to release students’ names as ‘directory information.’  For current students, federal law requires schools to first disclose they may release student names as directory information and then give students/parents the opportunity to refuse such disclosures before doing so.  34 C.F.R. § 99.37(a). 

However, the same section of federal law does not require any formal notice for former students, and schools may release former students’ names without any notice.  34 C.F.R. § 99.37(b).  There is no dispute that the minors who previously attended the retreats no longer attend the retreats.  Therefore, if they were acting as ‘students’ on the retreats, they are presently former students.  Therefore, under 34 C.F.R. § 99.37(b), there is no notice or opt out requirement, and ISU should release the student names pursuant to Iowa Code Chapter 22.  Two different federal courts agree with this interpretation of 34 C.F.R. § 99.37(b).[1]

Argument that Requiring the Release of Names Also Requires Disclosure of Disability Accommodation Requests and Gender Dysphoria Issues

Mr. Norton also argued that if IPIB determines the fact that students attended 4-H retreat programs constitutes public record, then ISU would also have to release disability accommodations or accommodations for those with gender dysphoria.  However, neither FERPA, 20 U.S.C. § 1232 (g), 34 C.F.R. § 99.3, nor Iowa Code § 22.7(1) supports this interpretation.  Disclosing the name of a ‘student’ does not imply an additional obligation to disclose someone’s disability accommodation or disclosure of gender identity.  If the retreat minor attendees are ‘students’ information about gender dysphoria or other accommodations falls within the exception under Iowa Code § 22.7(1).

Even if IPIB finds that the children attending retreats with 4-H at the ISU extension are not ‘students,’ Ms. Crowder is not seeking disclosure of disability accommodations or gender.

IPIB Action

The IPIB has several options upon receipt of a probable cause report.  According to Iowa Administrative Rule 497-2.2(4):

“Board Action.  Upon receipt and review of the staff investigative report, and any recommendations, the board may:

1.  Redirect the matter for further investigation;
2. Dismiss the matter for lack of probable cause to believe a violation has occurred;
3. Make a determination that probable cause exists to believe a violation has occurred, but as an exercise of administrative discretion, dismiss the matter;
4. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding; or
5. Direct administrative resolution of the matter under sub rule 2.1(6) without making a determination as to whether a violation occurred.”

Conclusion/Recommendation

There is no probable cause to find a violation of Chapter 22 regarding the failure to disclose any adult retreat attendees.  I recommend IPIB dismiss that portion of the complaint as moot pursuant to Iowa Administrative Code 497-2.2(4)(b).

There is no probable cause to find a violation of Chapter 22 regarding the failure to disclose emails.  I recommend the IPIB dismiss that portion of the complaint as moot pursuant to Iowa Administrative Code 497-2.2(4)(b).

However, on the third issue, there is evidence to support a finding of probable cause for a violation of Chapter 22.  That is because ISU refuses to disclose the minor 4-H retreat attendees’ names.  Even if those children are students, Iowa and Federal Laws make clear their names constitute public records.  ISU strongly disagrees and declines to disclose them.

Regarding the requirement to disclose the minor retreat attendees’ names, I recommend the IPIB enter a finding of probable cause, appoint a prosecutor, and direct the filing of a contested case proceeding pursuant to Iowa Administrative Code 497-2.2(4)(d).

 

Respectfully submitted this ________ day of ____________, 2019.

 

                                                                                                __________________________

                                                                                                Amanda T. Adams

 

CERTIFICATE OF SERVICE

 

This document was sent via electronic or regular mail on this _____ day of ____________, 2019, to the following parties:

Courtney Crowder, Complainant

Michael Norton, Attorney for Respondent

 

[1] United States of America ex. Rel. Lizette Munoz and Wesley Frendt, v. Computer Systems Institute, 11 C 7899 (N.D. Illinois  2015); the Court held that “FERPA does not require an educational institution to notify former students prior to disclosing directory information, and CSI’s objection in that regard is overruled.”

Heather Hay v. Somerset Area School District, 3:16-CV-229 (W.D. Pa., 2017); “The Court agrees with the Plaintiff that the ‘directory information’ of former students is not protected from disclosure under FERPA.”