Michigan Court of Appeals rules education records are subject to disclosure under Michigan's Freedom of Information Act

The attorneys at Kalniz, Iorio & Reardon represented a local bus drivers' union, affiliated with the Michigan Education Association, in their legal effort to obtain bus discipline referral forms documenting incidents occurring on school buses. The Kalamazoo Public Schools refused to release the records citing student privacy concerns under the Family Educational Rights and Privacy Act ("FERPA"). The Association responded that they were entitled to access to the records because the records directly related to working conditions and would be used in collective bargaining including in efforts to improve safety on school buses. The Association ultimately filed a Freedom of Information Act lawsuit in Kalamazoo County Circuit Court seeking a court order releasing the requested records. The Kalamazoo County Circuit Court denied the Association's request and dismissed the Association's lawsuit. The Association subsequently filed an appeal with the Michigan Court of Appeals.

In a case of first impression in Michigan, the Michigan Court of Appeals ruled in December, 2019 that the Freedom of Information Act applied to education records protected under FERPA. In particular, the Michigan Court of Appeals held that the education records were subject to disclosure and that any personally identifiable information could be redacted. Public bodies are required by law to redact personally identifiable information, but must release the remainder of the documents, the Court of Appeals stated. “Nothing in FERPA requires nondisclosure once the public agency redacts all ‘information directly related to a student’ from a particular record,” the court opinion states.

The Court of Appeals decision is significant as it rejects the legal argument that an education record is automatically and completely exempt from disclosure under FERPA. The decision is likely to impact how public educational institutions respond to FOIA requests that seek student education records. Under the decision, the public school cannot simply deny a FOIA request on the basis that the request seeks education records as defined under FERPA. Instead, the public school is required to release the records after removing (redacting) personally identifiable information. The decision balances the privacy rights of individual students while at the same time recognizing the public's right of access to public records. In this respect, the decision is a big win for public accountability and access. Fil Iorio, the Kalniz, Iorio and Reardon attorney who represented the plaintiffs, said the ruling was a “well-reasoned decision.” “The court recognized FOIA as a statute that provides for open government,” Iorio said.

To read more, see the decision at: https://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=349031&CourtType_CaseNumber=2

and the article on Mlive: https://www.mlive.com/news/kalamazoo/2020/01/kalamazoo-public-schools-lose-foia-lawsuit-in-michigan-court-of-appeals.html