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Erik Burgess, Published May 26 2013

Attorney general says NDSU violated open records laws

FARGO – North Dakota State University violated open records laws last fall when they denied releasing the disciplinary records of football players charged with petition fraud, according to the state attorney general.

Wayne Stenehjem, in a written opinion released Friday, said that when NDSU denied releasing the disciplinary records, which had been requested by North Dakota political blogger Rob Port, they gave an inaccurate legal reason for the denial, meaning they violated open records laws.

Port made the request in October after 10 NDSU football players pleaded guilty in Cass County District Court to violating North Dakota election law and were facing undisclosed disciplinary action from the school.

The players admitted to faking names on petitions to place two proposed statewide initiatives on North Dakota ballots in November’s election. The initiatives, which were eventually thrown out because of the fake signatures, sought to legalize medical marijuana and establish an outdoor heritage fund.

NDSU officials told Port that under the Family Education Rights and Privacy Act, the disciplinary records of the students were “explicitly confidential,” but Stenehjem said in his opinion Friday that this is not true, and therefore the school violated open records laws.

“As previous opinions from this office have established, it is a violation of the open records law to deny a record using an inaccurate legal reason,” Stenehjem wrote.

However, Stenehjem said that NDSU was ultimately correct in denying the records.

FERPA, a specific exemption to open records laws meant to protect the privacy of students and their parents, allows the release of student records if “personally identifiable information” can be redacted, which includes the student’s name, address, Social Security or student number, date of birth and other identifiers.

Identifiable information under FERPA also includes any details “that would allow a reasonable person in the school or its community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty,” according to Stenehjem’s opinion.

When questioned by the attorney general’s office, NDSU said that “the requested disciplinary records could not be redacted without retaining some personally identifiable information,” according to Stenehjem’s opinion.

And because the charges against the NDSU football players were widely reported by the media, NDSU determined that the disciplinary records would be “easily traceable to a specific student,” and so the school would be violating FERPA if it released the records.

Stenehjem said he agreed with this analysis, and because the university has provided his office with “reasonable explanation” for withholding the information, he is not requiring that NDSU take any further action.

Readers can reach Forum reporter Erik Burgess at (701) 241-5518