Redacted Disclosure of Educational Records
Plaintiff Better Government Association (BGA) requested education records under the Freedom of Information Act (FOIA) from defendant City Colleges of Chicago (City Colleges). City Colleges withheld and redacted responsive records. The BGA sued City Colleges alleging its response violated FOIA. The circuit court ruled in favor of BGA, finding that the Family Educational Rights and Privacy Act (FERPA) did not “specifically prohibit” the disclosure of the requested records and ordered City Colleges to disclose the records. City Colleges appealed, and the appellate court (Court) ruled in favor of City Colleges.
This was a case of first impression in Illinois regarding the intersection of FOIA and FERPA. Section 7 of FOIA exempts information from disclosure when it is “specifically prohibited from disclosure by federal or state laws or rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a). FERPA is a federal law that provides that “no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information)…of students without the written consent of their parents to any individual, agency, or organization.” 20 U.S.C. §1232g(b)(1).
The Court reviewed BGA’s request for “[d]ata regarding completed course work and curriculum for each of the graduates in the cohort counted toward the 2018 graduation rate…each course completed, the date of completion, credit hours earned, grade and degree.” City Colleges had redacted and withheld certain information from the requested records pursuant to section 7 of FOIA because of FERPA. City Colleges argued that the redacted information contained personally identifiable information, which could not be released without written consent from the students or their parents/guardians and that the records, even with student identities removed, would still contain “indirect identifiers” that could be used to identify students in violation of FERPA. BGA argued that City Colleges failed to meet its burden to prove that withheld information was exempted by statute because City Colleges cited to FERPA generally and made only conclusory statements that data could be used to indirectly identify students.
The Court found that the circuit court erred in determining there were no questions of fact, and it did not address the issue of the “de-identified” records, but instead it determined erroneously that FERPA is a funding statute that does not specifically prohibit the disclosure of student education data.
The Court determined that the central question was whether FERPA “specifically prohibits,” as that phrase is used in section 7 of FOIA, the release of the education records BGA sought in its FOIA request, such that the records are exempt from disclosure. The Court found that “the exemption in section 7(1)(a) of FOIA operates to exempt the requested records from disclosure in this case.” It noted that even courts that have found that FERPA does not “specifically prohibit” the release of education records have nonetheless recognized that FERPA was intended to protect records that contain personally identifiable information.
The Court stated that “FERPA does not prohibit the release of all education records in all circumstances. However, it does prohibit the release of personally identifiable information in education records without the consent of the students or their guardians.” The Court found that under FERPA and FOIA, public access to education records that contain personally identifiable information of a student “was not intended.”
Based on this finding, the Court stated that it was not clear, due to the lack of a record, what personally identifiable information is present in the requested records, whether the records can be redacted in a manner to satisfy FERPA and FOIA, and whether the redacted records would be responsive to BGA’s FOIA request. The Court remanded the case back to the circuit court to: 1) review the materials responsive to BGA’s FOIA request, and 2) redact or otherwise separate any portion of the education records that might contain information that constitutes “personally identifiable information” protected by FERPA.
Here is a copy of the full case.