State Records Committee Appeal 04-10

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEVEN J. ONYSKO, Appellant vs.
UNIVERSITY OF UTAH, Appellee.

DECISION AND ORDER
Case No. 04-10

By this appeal, former University of Utah professor Steven J. Onysko seeks an order compelling the University of Utah to disclose a nine-year-old Final Grade Report for one of the classes he taught - MG EN 499, Fall Quarter 1995. The State Records Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on September 16, 2004, now issues the following Decision and Order.

FINDINGS OF FACT

1. Until July 1, 1998, Mr. Onysko was a professor at the University of Utah. On May 11, 2004, he submitted a government records request to the University seeking a "Final Grade Report for MG EN 499 from the Fall of 1995 quarter. Final Grade Reports include information about students including their name, the class they attended, their social security number, the number of credit hours for the course and the grade received by each student.

2. On May 14, 2004, the University denied Mr. Onysko's request on the basis that the record he sought was protected by the Family Education Rights and Privacy Act. After the University's records officer denied his appeal, Mr. Onysko appealed to this Committee.

3. It is undisputed that the University annually receives millions of dollars in federal funding. For example, in 2002-03, the University received $185,269,144 in federal research funding constituting approximately 65% of the University's entire research funding.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). Section 201 further states the following records are not public:
records to which access is restricted pursuant to . . . federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds. Utah Code Ann. 63-2-201(3)(b). Finally, GRAMA provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . a federal statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63-2-201(6).

2. It is undisputed that FERPA prohibits the University from releasing education records without the student's consent. As the United States Supreme Court has recognized: "Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions. One condition specified in the Act is that sensitive information about students may not be released without [the student's] consent." Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426, 428 (2002) (citations omitted). 20 U.S.C. 1232g(b)(1) makes it clear that the disclosure of educational records are included within the Act's proscriptions. This portion of FERPA states: "[n]o funds shall be made available . . . to any educational agency or institution which has a policy or practice of permitting the release of education records . . . of students without the written consent of their parents to any individual, agency, or organization." Id.

3. In light of the foregoing, the threshold question before us is whether the record Mr. Onysko seeks is an "education record" within the meaning of FERPA. FERPA defines education records as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Id. at 1232g(a)(4)(A) (emphasis added). The record sought by Mr. Onysko is an "Instructor Copy" of a University of Utah form that contains information directly related to several students. The form includes the names of students, the course taken, the date of the course, grades and social security numbers. When Mr. Onysko was authorized to receive Final Grade Reports, he was a professor, employee and agent of the University. Therefore, the Committee agrees that these reports are "education records" under FERPA.

4. The Committee is not persuaded that the Instructor Copy of this official educational record become the personal property of the University's professors, that disclosure is subject to an exception under 20 U.S.C. 1232g(b) or that the record itself is otherwise beyond the scope of FERPA's prohibitions. Mr. Onysko is not a current "school official" and he has not, and cannot, demonstrate a legitimate educational interest in the Final Grade Report. Therefore, the record requested may not be released by the University to Mr. Onysko under the circumstances before us.

ORDER

WHEREFORE, IT IS ORDERED THAT Mr. Onysko's appeal is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. 63-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 21st day of September, 2004.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chair
State Records Committee