Caledonian-Record Publishing Co., Inc. v. Vermont State Colleges

Caledonian-Record Publishing Co., Inc. v. Vermont State Colleges (2002-412);
175 Vt. 438; 833 A.2d 1273

2003 VT 78

[Filed 05-Sep-2003]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2003 VT 78

                                No. 2002-412


  Caledonian-Record Publishing Company, Inc.	 Supreme Court

                                                 On Appeal from
       v.	                                 Washington Superior Court


  Vermont State Colleges, et al.	         March Term, 2003

  Alan W. Cheever, J.

  Philip H. White of Wilson & White, P.C., Montpelier, for
    Plaintiff-Appellant.

  Mary Alice MacKenzie, Waterbury, and Joseph P. McConnell and Maura D.
    McLaughlin of Morgan, Brown & Joy, LLP, Boston, Massachusetts, for
    Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley, Skoglund, JJ., and Allen, C.J. (Ret.) and
            Gibson, J. (Ret.) Specially Assigned


       ¶  1.  SKOGLUND, J.   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.

       Affirmed.                   

          
                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  The Family Educational Rights and Privacy Act states that federal
  funds will be withheld from any educational institution that has a "policy
  or practice of permitting the release of education records" to anyone other
  than certain enumerated persons and entities.  20 U.S.C. § 1232g(b)(1).

FN2.  In its brief,  plaintiff also asserted that access to the student
  disciplinary records and proceedings was compelled by the First Amendment
  to the United States Constitution and its equivalents under the Vermont
  Constitution.   Plaintiff's argument of the point is perfunctory, and may
  be adequately addressed by noting that the Constitution does not guarantee
  the press a right to access not available to the public generally, see
  Branzburg v. Hayes, 408 U.S. 665, 684 (1972), and that student disciplinary
  hearings and records are not criminal proceedings or records to which the
  press has historically had access.  See United States v. Miami Univ., 294 F.3d 797, 821-24 (6th Cir. 2002) (denial of right of access to student
  disciplinary proceedings and records does not violate First Amendment). 
  Accordingly, we discern no constitutional violation.