OPEN RECORDS LAW KEY CONCEPTS FOR UNIVERSITY EMPLOYEES

Rick D. Johnson
General Counsel, NDSU
7/24/00

1. Under North Dakota law, as a university employee you assume records in your possession are open unless you can point to a specific law that says otherwise.

2. With student records, since FERPA (which is a federal law) is such an exception, you assume just the opposite - an educational record pertaining to a student is closed unless an exception says it is open. Only directory information and some law inforcement records are "open" in the open records sense.

3. There are three classes of records under the open records:

• Open - must be disclosed
• Exempt - agency discretion whether to open or not
• Confidential - can't disclose by law

Unlawful public disclosure of confidential records can, under some circumstances, be a felony under state law.

4. The majority exceptions to the open records law for university employees to know are:

• Student education records.
• Employee personal (e.g., SS#, payroll deductions), medical and assistance program records and student health center records.
• Intellectual property and trade secrets.
• Criminal intelligence and investigative information.
• Academic examination questions and answers.
• Lists of children, e.g., university-run child care center.
• Attorney work product.
• Risk management fund claim records.
• Donor fundraising records.

5. The major exception for student education records under FERPA is directory information. There are other limited exceptions which apply to disclosures to specific parties, but this doesn't mean the record is "open" under the open records law. Some examples of legal limited disclosures are:

• To other school officials with a need to know.
• To parents of dependent students as dependent is defined by the IRS. Parents must prove dependency status and should be directed to the Registrar's Office for this process.
• To certain public officials for program and audit purposes.
• To comply with legal subpoenas.
• Health and safety emergencies.
• Disciplinary results to victims of violent crimes and sexual assaults.
• If a student has waived the student's privacy right.
• Sole possession records.

6. Before putting any record pertaining to an employee's character or performance into their official personnel file, you must let the employee read and sign the record. With certain exceptions, employee personnel records are open records.