IU violated public access laws when it denied the Indiana Daily Student’s open records request for a student’s disciplinary record pertaining to sexual assault, according to the opinion of Luke Britt, the Indiana Public Access Counselor.
“FERPA simply operates to protect student populations by preventing schools from sweeping allegations of violence or sex offenses under the rug in order to protect the school’s brand or reputation,” Britt said in the opinion.
The records were requested during the six-month reporting process for the now-published “Dissonance in due process” investigation. The investigation found the university did not follow its word when readmitting IU student Chris Parker after he violated a suspension stemming from a 2015 sexual assault. If he came on campus during his suspension, the suspension terms said he was either to be expelled or charged by police. Neither happened, and he was suspended again.
In August 2021, the IDS obtained a document which said Parker was found responsible for a sexual assault after a Title IX and hearing process in 2016. Knowing this, the IDS requested Chris Parker’s disciplinary record in an open records request Sept. 14, 2021, citing Indiana Code and a Family Educational Rights and Privacy Act exemption. IU is a public university, meaning it is subject to the Access to Public Records Act.
Related: [Dissonance in due process]
After the university denied access to such records, the IDS reported a complaint to the Indiana Public Access Counselor, which was received Nov. 1, 2021. The complaint said IU restricted the records and used disclosure exemptions incorrectly.
In a similar case, University of North Carolina student publication, the Daily Tar Heel, and three other North Carolina media companies won a lawsuit to require UNC to release records of students found responsible for rape, sexual assault or related acts of sexual misconduct.
Generally, student records, both academic and disciplinary, are protected by a FERPA, which is a federal law limiting access to educational information. However, one FERPA exemption says that an institution can disclose disciplinary records when the student is the alleged perpetrator of a violent crime or a nonforcible sex offence.
According to the exemption, released information should include the student’s name, the violation committed and any sanction imposed on the student. It also may include the name of a student who is a victim or witness with their written consent.
The state office notified the IDS of their decision for the complaint Jan. 31, 2022, saying in their official opinion that IU violated APRA when denying the request.
In response to the complaint to the Public Access Counselor, IU said they denied the request in accordance with APRA and FERPA.
The university said it did not disclose such records because it does not specify its policies in their code of conduct as “crimes of violence” or “nonforcible sex offences.” The university said it is not required to determine if a code violation falls into such categories. Britt said in the opinion that this is an “absurd result.”
“This office does not find IU’s arguments to be persuasive in this matter,” Britt said in the opinion. “It does not have statutory authority to withhold the final results of disciplinary proceedings involving a perpetrator of crimes of violence or sex offenses. Moreover, the university cannot simply use semantics to deny their existence.”
The university said in its response that it has “relied on and consistently followed” the Public Access Counselor’s guidance.
As of Jan. 31, IU has not responded as to whether it will now release the requested records.