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

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Accordingly, we reverse the Court of Appeals’ ruling that the requested information was not subject to release under the Open Records Law (Wis. Stat. Sec. 19.35.9).

“Based on this unambiguous [statutory] language, it is clear that FERPA protects the disclosure of education records. It is also clear, however, that FERPA does not prohibit disclosure of all information contained in such records. The Act itself indicates that directory information, which is part of an education record, is subject to release. Furthermore, as Osborn notes, the parenthetical referring to personally identifiable information would be meaningless if FERPA prohibited disclosure of all information in education records. …

“Based on the written requests and his counsel’s statements at oral argument, we conclude that Osborn is not requesting personally identifiable information. The list of somewhat minimal information Osborn requests – grade point average, test scores, race, gender, and ethnicity (if recorded) – is not sufficient, by itself, to trace the identity of an applicant. Although we recognize that in a small number of situations the requested information could possibly create a list of characteristics that would make an individual personally identifiable, we conclude that under the circumstances here, the information is not personally identifiable. …

“Based on the unambiguous language in Wis. Stat. sec. 19.36(6), we conclude that the University has a duty to comply with Osborn’s open records requests by redacting or deleting the information that is not subject to disclosure. We previously concluded that Osborn is not requesting personally identifiable information that is protected from disclosure either by FERPA or by public policy considerations. Consistent with Osborn’s open records requests, therefore, the University must comply with sec. 19.36 by redacting or deleting personally identifiable information in the application records, before releasing the information subject to disclosure.

“In summary, we reverse the court of appeals’ decision. We have concluded that Osborn is not requesting personally identifiable information. Consequently, the University cannot rely on FERPA to prohibit the disclosure of the requested information found in student application records. We have balanced the public policy interests involved, and have concluded that because the requested information is not personally identifiable, there is no overriding public policy interest in keeping the requested records confidential. Finally, we have addressed the University’s duty to redact under Wis. Stat. sec. 19.36(6) and have concluded that the unambiguous language of the statute requires the University to provide the information that is subject to disclosure, and to redact or delete the information that is not.”

Reversed and remanded.

Court of Appeals, Crooks, J.

Attorneys:

For Appellant: Alan Lee, James E. Doyle, Madison

For Respondent: Daniel Kelly, Milwaukee