Access To Student Records Case Remanded

The Montana Supreme Court has remanded an effort by author and journalist Jon Krakauer to obtain access to disciplinary records concerning campus sexual assault that were the subject of his book Missoula.

In the context of this particular case, as discussed above, the national and state legislatures have taken the affirmative action of enacting legislation establishing the privacy interests of students in their records, as a matter of law. This action sets this case apart from others involving general privacy interests, and courts must honor the unique privacy protection legislatively cloaked around the subject records by factoring that enhanced privacy interest into the balancing test…

Having concluded that the records in question in this case appear to fall under the “Personally Identifiable Information” protection granted by FERPA, and also having concluded that FERPA and state statute provide an exception for release of information pursuant to a lawfully issued court order, we remand this case to the District Court for an in camera review of the documents in question. After giving due consideration to the unique interests at issue in this case, as discussed herein, the District Court will re-conduct the constitutional balancing test and determine what, if any, documents may be released and what redactions may be appropriate. As noted above, the exception to FERPA that allows for release of documents pursuant to a court order requires advance notice to the affected student or parents, and a district court must comply with this directive before releasing protected information.

 Dissenting Justice McKinnon would reverse rather than remand

In the context of this particular case, we have left unanswered many of the questions raised by the parties which, in my opinion, were incorrectly resolved as a matter of law by the District Court. Our guidance to the District Court is essentially that, “[t]his enhanced privacy interest must be considered and factored into the constitutional balancing test on remand.” Opinion, ¶ 37. In an attempt to describe “this enhanced privacy interest,” we cite “phrasing” from another jurisdiction, “merely for illustrative purposes,” but are unwilling to a set forth a standard, rule, or appropriate analysis regarding a statutorily protected enhanced privacy interest. In my opinion, we have failed to address the parties’ arguments. If correct legal principles and analyses are applied by this Court while considering the specificity of Krakauer’s request, it is not necessary to remand these proceedings to the District Court for an in camera review and balancing of privacy interests and the right to know…

 In the context of Krakauer’s request for the specific student’s records, the student’s enhanced privacy interest would receive no protection. As the Court observes, “[o]bviously, records provided in response to a request naming a particular student will be about that student . . . .” Opinion, ¶ 38. Here, Krakauer requested a specific student’s records by name, because he wanted the specific student’s records. Had he been interested in the process by which the Commissioner handled complaints of sexual assault, his request would not have been specific as to the student. Krakauer’s request of the Commissioner was to “inspect or obtain copies of public records that concern the actions of the Office of the Commissioner of Higher Education in July and August 2012, regarding the ruling by the University Court of the University of Montana in which student [name redacted] was found guilty of rape and expelled from the University.”

 Thus

I would reverse the judgment of the District Court. I would conclusively decide the issue of attorney fees and costs in favor of the Commissioner. Remand for in camera review is not necessary given the manner in which the request for records was made and that, as a result, no protection can be accorded the student’s substantial and weight privacy interests.

(Mike Frisch)