Caledonian-Record Publishing Company, Inc. v. Vermont State Colleges, et al.

Plaintiff Caledonian-Record Publishing
Company, Inc. appeals from a superior court order denying its request for
access to student disciplinary records and hearings at Lyndon State College
and the Vermont College System as a whole. Plaintiff contends the court
erred in concluding that the disciplinary records and hearings are
generally exempt from public access under the Vermont Open Meeting Law and
Public Records Act and the federal Family Education and Privacy Rights Act.
We affirm, but for reasons different from those stated by the trial court.

2. Plaintiff filed a complaint for declaratory and injunctive
relief against defendants Vermont State College (VSC), Lyndon State College
(LSC) and Robert Clark and Carol Moore, the respective presidents of the
two institutions, seeking access to the daily logs maintained by LSC's
Department of Campus Security, and student disciplinary records and
disciplinary hearings relating to allegations of student misconduct in
violation of the criminal law and the student code of ethics. LSC provided
the requested security logs, but otherwise claimed that the records and
hearings in question were exempt from public access under the Vermont Open
Meeting Law, 1 V.S.A. §§ 310-314, and Public Records Act, 1 V.S.A. §§
315-320, and the federal Family Education and Privacy Rights Act, 20 U.S.C.
§ 1232g (FERPA) (commonly known as the Buckley Amendment).

3. The parties stipulated to most of the pertinent facts.
Thereafter, following a hearing, the court issued a written decision,
setting forth its legal conclusions. With respect to student disciplinary
hearings, the court noted that VSC and LSC had stipulated to the conclusion
that they are instrumentalities of the State and as such generally subject
to the Open Meeting Law. See Animal Legal Def. Fund, Inc. v. Institutional
Animal Care & Use Comm. of the Univ. of Vt., 159 Vt. 133, 138, 616 A.2d
224, 227 (1992). The court found, however, that the majority of
disciplinary proceedings conducted before single hearing officers are not
"meetings" before a "public body" under § 312(a), and therefore not subject
to the Open Meeting Law.

4. The court applied a different analysis to disciplinary
proceedings conducted before multi-member hearing panels and appeals
boards, ruling that they constitute "education records" which must be kept
confidential under FERPA, 20 U.S.C. § 1232g(b). See 1 V.S.A. § 312(e)
(exempting from Open Meeting Law those "proceedings, records, or acts which
are specifically made confidential by the laws of the United States of
America or of this state."). (FN1) The court further found, however, that
under FERPA the final results of a disciplinary proceeding against a
student accused of any crime of "violence . . . or nonforcible sex
offense" could be released if the college determines that the student
violated the college's rules by committing the offense. 20 U.S.C. §
12342g(b)(6)(B).

5. The court applied a similar analysis to the Public Records Act
claim, concluding that student disciplinary records are "education records"
under FERPA, and therefore within the scope of 1 V.S.A. § 317(c)(11), which
exempts from public disclosure "student records at educational institutions
funded wholly or in part by state revenue; provided, however, that such
records shall be made available upon request under the provisions of the
Federal Family Educational Rights and Privacy Act."

6. Thus, the court denied plaintiff's general request for access
to student disciplinary records and hearings and ordered disclosure of the
final results of any disciplinary proceeding against a student accused of a
crime of violence or nonforcible sex offense if found to have violated
college rules by committing the offense. The court also directed
defendants to comply with the reporting requirements of the Student
Right-to-Know and Campus Security Act (Clery Act), 20 U.S.C. §
1092(f)(1)(F), which requires colleges to publish statistics - but not
names of individual students - concerning the occurrence of campus crimes.
The court denied plaintiff's request for attorney's fees. This appeal
followed.

7. Plaintiff challenges the trial court's denial of its requests
for access to student disciplinary hearings and student disciplinary
records maintained by LSC and VSC. We reach the same result as the trial
court but based on different reasoning. See Lalande Air & Water Corp. v.
Pratt, 173 Vt. 602, 604, 795 A.2d 1233, 1236 (2002) (mem.) (Court may
affirm judgment where right result was reached for wrong reason). The
trial court, as noted, denied disclosure based, in part, on the statutory
exception for records and proceedings "made confidential by the laws of the
United States," 1 V.S.A. § 312(e), and the confidentiality provisions of
FERPA. We note, however, that state and federal courts are sharply divided
on this issue. Some have questioned whether the federal law, merely by
withholding funds from educational institutions that release education
records to anyone other than certain enumerated persons, affirmatively
prohibits disclosure of student records. See, e.g., Red & Black Publ'g Co.
v. Bd. of Regents, 427 S.E.2d 257, 261 (Ga. 1993) ("[W]e have serious
questions whether the Buckley Amendment even applies to the [open meeting]
exemptions argued by the defendants since the Buckley Amendment does not
prohibit disclosure of records. Rather, . . . the Buckley Amendment
provides for the withholding of federal funds for institutions that have a
policy or practice of permitting the release of educational records.");
Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D.Mo. 1991) ("FERPA is not a law
which prohibits disclosure of educational records. It is a provision which
imposes a penalty for the disclosure of educational records."); but cf. DTH
Publ'g Co. v. Univ. of N. C. at Chapel Hill, 496 S.E.2d 8, 12 (N.C. Ct.
App. 1998) ("Although FERPA does not require UNC to do anything, but
instead operates by withholding funds, we hold FERPA does make student
education records 'privileged or confidential' for [open meeting law]
purposes.").

8. The trial court's conclusion that student disciplinary
proceedings are "education records" as defined by FERPA has also been the
subject of sharp dispute. Compare Red & Black, 427 S.E.2d at 261
(disciplinary records of university's student organization court "are not
of the type the Buckley Amendment is intended to protect, i.e., those
relating to individual student academic performance, financial aid, or
scholastic probation."); Kirwan v. Diamondback, 721 A.2d 196, 206 (Md.
1998) ("education records" under FERPA do not include records of student
relating to parking infractions or violations of NCAA athletic
regulations); State ex rel. Miami Student v. Miami Univ., 680 N.E.2d 956,
958 (Ohio 1997) (university disciplinary records are not "education
records" under FERPA, and therefore not exempt from disclosure under open
meeting law exemption for records "the release of which is prohibited by
state or federal law"); with United States v. Miami Univ., 294 F.3d 797,
811-13 (6th Cir. 2002) (holding, contrary to Ohio Supreme Court, that
student disciplinary records are "education records" under FERPA);
Connoisseur Communication of Flint v. Univ. of Mich., 584 N.W.2d 647, 649
(Mich. Ct. App. 1998) (university records relating to student athlete's
motor vehicle violation are "education records" under FERPA); DTH, 496
S.E.2d at 13 ("Given the breadth of FERPA's definition of 'education
records' . . . the student [disciplinary] records at issue in this appeal
are protected as 'education records' under FERPA and are 'privileged and
confidential pursuant to the law . . . of the United States' under [open
meeting law]."). See generally, S. Bassler, Public Access to Law School
Honor Code Proceedings, 15 Notre Dame J.L. Ethics & Pub. Pol'y 207, 230-37
(2001) (discussing FERPA cases).

9. It is unnecessary, in our view, to resolve these disputed
issues under FERPA. We conclude, rather, that the express Public Records
Act exception for "student records" is directly on point and plainly
exempts the student disciplinary records from disclosure. See 1 V.S.A. §
317(c)(11) (exempting from disclosure "student records at educational
institutions funded wholly or in part by state revenue" except where
disclosure is required upon request under FERPA); Animal Legal Defense
Fund, 159 Vt. at 139-40, 616 A.2d at 227 (noting that student records
exception demonstrates that University of Vermont is generally subject to
Act). Although the Public Records Act does not define "student records,"
the language of the exception is broad and unqualified. We find nothing in
the Act or other evidence to suggest any content-based restrictions
limiting the exception, for example, to student academic performance,
financial aid, or other strictly scholastic subjects, or excluding records
relating to violations of the student ethics code or the criminal law. See
Lecours v. Nationwide Mut. Ins. Co., 163 Vt. 157, 161, 657 A.2d 177, 180
(1995) (where legislature omitted language from statute, "we are
constrained not to rewrite [it]"); Marston v. Gainesville Sun Pub. Co.,
341 So. 2d 783, 785 (Fla. Dist. Ct. App. 1976) (Florida public records act
excludes disclosure of student disciplinary records). Student disciplinary
records maintained by LSC and the Vermont College System are therefore
exempt from disclosure.

10. Although plaintiff's amended complaint had also sought
access to the disciplinary hearings themselves, in its briefing and at oral
argument before this Court plaintiff took the position that the hearings
could be held in closed executive session, but argued that such hearings
must comply with the executive-session provisions of 1 V.S.A. § 313(a),
which require a motion in public indicating the nature of the executive
session, a vote for any formal action in public session, and disclosure of
any resulting minutes. Plaintiff made it clear that it really wants access
only to the minutes, which would show the action of the hearing officer or
panel, and the reason for the decision. In view of plaintiff's position,
we need not decide whether the Open Meeting Law requires access to the
disciplinary hearings, or whether under the Open Meeting Law disciplinary
proceedings before single hearing officers warrant different treatment from
hearings before multi-member hearing panels. Regardless of these
questions, it is clear that minutes and other records generated by such
proceedings fall within the broad "student records" exemption under the
Public Records Act, discussed above, and therefore are exempt from
disclosure. Further, although "academic records or suspension or
discipline of students" are among the subjects that a public body may
consider in executive session, 1 V.S.A. § 313(a)(7), and school boards
often retire to discuss such policy areas, we do not believe that
disclosure of records generated by disciplinary adjudications such as those
at issue here is required when to do so would eviscerate the privacy
considerations underlying the student records exception. See DTH, 496
S.E.2d at 13 (student disciplinary proceedings may be closed because "it is
impossible to hold a student disciplinary hearing without divulging student
records" which are otherwise confidential). (FN2)

11. In essence, plaintiff is attempting to evade the clear
mandate of the Public Records Act that the disciplinary decision be
confidential by means of the Open Meeting Law. We do not believe the Open
Meeting Law allows this evasion. Section 312(e) states that the Open
Meeting Law cannot be construed to make public any "records" that are
"specifically made confidential by the laws . . . of this state." The
minutes are public records, id. § 317(b), and the decisions reflected in
those minutes are made confidential by § 317(c)(11).

12. We thus conclude that the trial court properly denied
plaintiff's request for access to student disciplinary records and
proceedings at LSC. We note, however, that the "student records" exception
itself provides an exception for records that may be released, upon
request, under FERPA. 1 V.S.A. § 317(c)(11). Therefore, the court also
properly ordered disclosure of the "final results" of any disciplinary
proceeding against a student alleged to have committed a "crime of
violence" or "nonforcible sex offense" where the college determines that
the student violated the college's rules by committing the offense. 20
U.S.C. § 1232g(b)(6)(B).

13. We have noted on more than one occasion the essential public
interest in broad access to governmental records and proceedings. See
Trombley v. Bellows Falls Union High Sch., 160 Vt. 101, 106-107, 624 A.2d
857, 861 (1993); Finberg v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 981
(1992). We have also recognized the important privacy interests that
underlie the enumerated statutory exceptions to the rule of access.
Trombley, 160 Vt. at 109-110, 624 A.2d at 863. In our view student
disciplinary adjudications and records at LSC and other campuses of the VSC
system fall squarely within the express statutory exception for "student
records," and we are therefore not at liberty to grant plaintiff's request
for their routine disclosure. Of course, the delicate balance inherent in
these competing interests is, and remains, a legislative prerogative to
alter or amend.

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