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MSU loses claim that student privacy trumps transparency law

Universities increasingly cite federal privacy law to withhold information

Michigan’s open records law requires most government offices, including public universities, to disclose public records when they are asked, but a federal education law forbids universities to release certain information about students. Michigan State University cited the federal law when it refused to release emails related to a controversy involving one of its officials. Last month, it lost in a Michigan Court of Appeals ruling that an advocate for government transparency applauded.

In 2020 the Graduate Employees Union at Michigan State University called on MSU to remove Stephen Hsu, the university’s senior vice president of research, from his administrative position. The students cited remarks Hsu had made on a blog, which they dubbed racist. Hsu resigned shortly thereafter.

A month later the Mackinac Center for Public Policy sent a request under the Freedom of Information Act to the university, asking for emails to or from the MSU president about Hsu. In December 2020, nearly six months after the request, MSU released 594 pages of information. But it redacted some material, saying that releasing it would violate the federal privacy rights of students who had written to the president.

Three years later, the Michigan Court of Appeals agreed with the Mackinac Center that the university could not use FERPA to justify withholding the information sought in the FOIA request

Read it for yourself: Mackinac Center for Public Policy v. Michigan State University

The Mackinac Center requested emails from graduate union students and others who tried to influence MSU’s governance of the university by calling for Hsu’s dismissal. It added that the students thrust themselves into a public debate when they attempted to influence the university’s personnel decisions. The Mackinac Center did not ask for the students’ grades, academic discipline or financial records.

The court ruled for the Mackinac Center, which argued that the emails were not “education records,” which would trigger federal privacy protections. “We conclude that the e-mails are not education records because they do not contain information directly related to the students who sent them and because they are not maintained by by (the university),” the court ruled.

“Finally, we conclude the redacted student information is mere directory information, which is excluded from the general FERPA disclosure prohibitions.”

Derk Wilcox, a Mackinac Center attorney, is pleased with the outcome. “The FERPA question matters,” he told CapCon, “because it’s been a growing problem where schools deny FOIA requests on the pretext that it might reveal something about the students.”

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.