The sudden refusal by Ohio University’s legal office to release reports of student Title IX allegations against staff members is illegal, some legal experts said.
In December 2018, university officials said the Equity and Civil Rights Compliance office, or ECRC, stopped providing reports regarding Title IX violations reported by a student. The changes came after previously redacted cases alluded more information to the public than intended, Carly Leatherwood, OU spokeswoman, said.
Previously, the public was able to obtain memorandums of finding, or MOFs. Now, the university will only supply a summary of the closed case and not a redacted version.
Frank LoMonte, director of Brechner Center for Freedom of Information, said nothing has changed in the Family Educational Rights and Privacy Act, or FERPA, that would require the university to change its process.
There are times when universities will argue they can’t provide the redacted version of the report because of the detail about the case, but it’s just a failure of redaction, LoMonte said. The office can always further redact details about the individual complainant.
“If you’re writing a document that makes it impossible to redact for public release, then you’re writing it wrong,” LoMonte said. “You should be creating public records with the idea that you produce the maximum amount of information to be given as you can.’’
There is a balance between protecting students and the need to disclose information, Leatherwood said. If a claim against a faculty member is substantiated by ECRC investigators, faculty are entitled to participate in a robust process as outlined in the faculty handbook.
“This is a change in practice for the University, and it only applies to student cases,” Leatherwood said. “We will continue to release reports that don’t involve students.”
The new process does not stop a student from disclosing information to the public if they choose to do so.
LoMonte said he is skeptical that claims made by the university supporting the new process are actually going to reveal the identity of people. Cases involving Title IX violations require a great deal of inside knowledge about individuals within the college that the incident took place.
An example would be if an incident occurred on a trip with a faculty member and three people inside the department knew what students went on that trip, LoMonte said. Faculty members and associates would already be privy to the incident.
“FERPA speaks in terms of people who might not be familiar to the situation and would be able to figure things out,” LoMonte said. “If you have first-hand knowledge, you have first-hand knowledge. It’s not the document that’s disclosing anything to you.”
Colleges are very fearful for being known as places where a lot of sexual violence takes place and many are taking steps to conceal that violence, LoMonte said. He suspects that the change was driven by a press relations image concern, rather than any substantive legal basis.
Schools and universities, in general, have historically used FERPA to not release information that could be embarrassing from a public relations perspective, Eddith Dashiell, associate professor of communication law, said.
It’s difficult to make the distinction between records that are protected under FERPA and records that are not, Dashiell said. It’s still unethical and illegal to use FERPA as a protector when cases clearly do not violate student privacy.
A number of court cases in Ohio specifically state that investigative reports are public records under Ohio law and that FERPA does not prohibit the disclosure of those records in a redacted form, Joshua Engel, civil rights attorney at Engel and Martin LLC, said.
As for consequences, someone would have to bring suit under the Ohio Open Records Act and say the university is required under the act to provide as much of the redacted documents as possible, LoMonte said.
University policies cannot override the state’s open records law, LoMonte said. Withholding an entire document that should be released in redacted form makes the university liable under the open records act.
Dashiell said FERPA is ultimately designed to protect student education records. The problem is knowing when to define a record as it relates to education or not.
“Silencing the media is silencing the public,” Dashiell said. “Regardless or not you work for the press, what if you needed public information and it was your public right to have access to it? This is a fundamental First Amendment issue.”