00-2861 Osborn and Center for Equal Opportunity v. Board of Regents of the University of Wisconsin System

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This is so because the records sought are “educational records” within the meaning of the Family Educational Rights and Privacy Act (20 U.S.C. sec. 1232g) and are subject to privacy limitations.

Further, even if FERPA were not to provide a specific statutory exemption for the nondisclosure of non-enrollees’ education records submitted in the application process, as well as enrollees’ education records, the public policy considerations which drove our decision in Rathie [v. Northeastern Wisconsin Technical Institute, 142 Wis.2d 685 (Ct. of App. 1987)] provide an alternate basis for denying access. …

“Because we have concluded that all the records sought are education records for which 20 U.S.C. sec. 1232g and public policy prohibit disclosure and because the University is not required to create records to satisfy Osborn’s request, we reverse the order to provide records and affirm the circuit court’s decision refusing to direct the University to create new records for the enrollees. Therefore, the portion of the order directing disclosure is reversed; the portion of the order directing non-disclosure which is the subject of the cross-appeal is affirmed.”

Order affirmed in part and reversed in part.

Recommended for publication in the official reports.

DISSENTING OPINION: Dykman, J. “The majority requires Osborn to prove that the records at issue were created by an educational agency or institution that did not have funds available to it from the United States Department of Education. Majority at n.4. But Osborn did not have to raise or prove anything. The burden was on the Board of Regents to show that both the high schools and the entities preparing ACT, SAT, LSAT and MCAT tests received funds from the United States Department of Education. Since there is no record of where those entities received their funding, the only possible conclusion is that the records custodian has failed to show that the entities enjoy the protection of 34 C.F.R. §§ 99.1 and 99.3 (2000).14 Without that protection, the Board of Regents must release the records of the non-enrolled students’ high school records and ACT, SAT, LSAT and MCAT tests.”

Dist IV, Dane County, Schwartz, J., Roggensack, J.

Attorneys:

For Appellant: Alan Lee, Madison

For Respondent: Daniel Kelly, Milwaukee