From ACP: The open records roadblock: FERPA, HIPAA and Clery – oh my

Frank LoMonte is the Director of the Student Press Law Center. He travels around the country advocating for the rights of student media.  

Let’s bust some myths about public records and the answers you might get when requesting documents.

When requesting records, something to note is almost nothing you want is a Family Educational Rights and Privacy Act (FERPA) record – especially if it’s a crime.

The term “education records” is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.

Under FERPA, the eligible student has the right to have access to his or her education records, the right to seek to have the records amended, the right to have control over the disclosure of personally identifiable information from the records (except in certain circumstances specified in the FERPA regulations, some of which are discussed below), and the right to file a complaint with the Department.

What’s the best way to find out if something is protected under FERPA when doing research and requesting records? Ask for your own. You’d be surprised by the process and what they actually give you in your education records. Whatever you don’t get, isn’t protected by FERPA.

If they say…

  • “It’s under investigation” it’s often wrong
  • “It’s personnel” it’s usually wrong
  • “It’s HIPAA” it’s always wrong

HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. The primary goal of the law is to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.

When it comes down to it, HIPAA is a part of Medicare law. It’s so hospitals and healthcare offices that accept Medicare and Medicaid can continue to receive the funding to do so.

As a journalist, someone not working/accepting/receiving Medicare and Medicaid funding, you cannot violate HIPAA. Police departments, Emergency Medical Technicians, Firefighters, Athletic trainers are all not protected under HIPAA.

Note: statistics aren’t private.

The main thing that will hinder your access to documents and records are fees. Here are some tips for dealing with expensive records:

  • Make sure state law doesn’t cap fees.
  • Get itemized bill and haggle back. Argue every penny to the point where you know exactly what you are paying for and they have an answer for every charge.
  • Demand records in native electronic format. It is unrealistic that organizations keep things only in paper format. Ask them to send it to you electronically, or go to the place yourself and either take photos of the documents, or scan them with your phone.
  • Inspect the documents before making copies. Know what you are looking for is actually there before you spend the cash.

The Jeanne Clery Act, a consumer protection law passed in 1990, requires all colleges and universities who receive federal funding to share information about crime on campus and their efforts to improve campus safety as well as inform the public of crime in or around campus. 

5 things to know about the Clery act:

  • Campus must get timely/immediate notice of known dangers to safety. (This is why we have MavAlerts.)
  • Daily crime logs must have 60 days’ worth of crimes, and need to be updated every 48 hours with an adequate description of the crime. If the description is unclear, short or questionable, bring it up.
  • The university must provide an annual statistical report of serious crimes, discipline. It must be filed by Oct. 1
  • The figures are almost always wrong.
  • When they’re wrong, they’re never too high.

Interesting story idea: compare daily police incident report to the annual Clery report. See what matches up and what doesn’t. Question everything. Also check and see if the university has a person designated to specifically compile the report — you have a story either way: a look behind the person who compiles the Clery for UTA, or the fact that UTA doesn’t have one person.

Frank said the best way to understand how non-journalists can get access to records, which they all have the right to, is to do a process story. Go to the department you would want the record from and ask them to walk you through how that works. Biggest tip after that? Don’t talk. Just listen. Write everything down. Ask what happens next. Don’t interject. Really get the full idea of what the process is like. Then, you can go back with either records or information about the records and ask the questions then.

If you’re being blocked from getting records, try these websites in the meantime:

guidestar.org

This is a website where you can look at non-profit organizations tax returns and income information. This is particularly helpful for private universities, greek organizations and sports conferences (Sunbelt!). Sometimes it helps to put the name of the university in the search bar anyways because you never know what non-profit organizations have stories on your campus. When I searched UTA/UT Arlington, I found the alumni association and it’s a non-profit. So, you never know what you’ll find.

EADA – Equity in Athletics Analysis

http://ope.ed.gov/athletics/#/institution/details

This website was really cool because you can see the entire budget of the athletic departments on your campus. You need to check the source and fact-check it with other salary documents and operating budgets, but it’s a neat tool to find some story ideas about sports that aren’t necessarily game-related.

Tip from a smaller school — if you can’t get money information from your university, for whatever reason, check with your state auditor’s office. They definitely fall under the Federal Open Information Act and can get you documents if you request them.

The main lesson in all of this — there are ways around your university if they are especially difficult when providing public records. The best thing to do is document everything and use it when you really need to.

—AG

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This entry was posted in Training by Anna Gutierrez. Bookmark the permalink.

About Anna Gutierrez

After graduating in 2017 from the University of Texas at Arlington, I moved to Indianapolis, Indiana, to work for the Society of Professional Journalists. As the communications coordinator, I work on a variety of communications for SPJ: creating the weekly newsletter, writing press releases and managing and generating content for SPJ’s social media channels. I believe in the First Amendment and the importance of passionate storytelling and digital strategy. I love my dog, Lilly, planners, pineapples and all things Texan.

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