Requests for Disclosure of
Faculty Aggregate Grades
Synopsis: We
have been asked to provide advice to community college
districts regarding an issue that has arisen nationwide
involving public records requests by XLIX, a company
doing business as "Pick-A-Prof" ("XLIX,"
see www.pickaprof.com), for data consisting of aggregate
grades for each course held during specified semesters,
identified by individual faculty member. The requests
in California have been made under the California Public
Records Act. (CPRA; Gov. Code, § 6250 et seq.)
The System Office is providing this advisory to assist
districts in responding to these requests. Please note
that applying the information and analysis discussed
below to specific situations will require districts
to review their recordkeeping practices and to conduct
a thorough review of the applicable law. The System
Office does not administer or enforce the laws discussed
in this advisory. However, we offer this information
to provide a starting point for districts that are presented
with CPRA requests from XLIX. Please also note that
districts should consult with their own legal counsel
as specific questions arise.
Background
We are informed that higher education institutions
initially made efforts to resist CPRA requests from
XLIX. In California, this culminated in XLIX filing
a lawsuit against the University of California in Yolo
County Superior Court earlier this year. The case was
settled, a writ was issued by the court in May of this
year in favor of XLIX, and UC was required to pay XLIX's
attorneys' fees of $15,000. The court judgment required
UC to disclose the following records:
"Public records that evidence, reflect, and/or
summarize the grades awarded in the Winter 2004 term
for all formal undergraduate courses with an enrollment
of 10 or more students, on a course-by-course basis,
by each professor who teaches at least one formal undergraduate
course at the University."
We also understand that UC and CSU have provided XLIX
with the requested information except for classes with
an enrollment of less than ten students (due to the
small size of the cohort) and classes where all students
received the same grade. In addition, major public universities
in other states (Texas, Washington, Florida, and Michigan,
for example) are providing grade and course information
to XLIX, which has served to further weaken the case
for other higher education institutions to resist disclosure.
Of course, we cannot anticipate exactly what XLIX
might ask for in a particular request. However, based
on a recent CPRA request shared with us by one district,
it appears that XLIX has refined its requests over time
and is not seeking "the names, identification numbers,
etc. of individual students or the grades earned by
individual students." Our analysis in this advisory
will be based on that assumption.
College faculty members are understandably concerned
about what is seen as an assault upon academic freedom.
There is also the risk that students with access to
information about the grades awarded by individual faculty
members will seek to enroll in courses taught by those
perceived to be lenient graders.
Conclusion
There is no statutory exemption which would protect
the records typically sought by XLIX from disclosure
and colleges are advised to provide the requested records
unless they are prepared for the possibility of litigation
which could result in payment of attorneys' fees. However,
care must be taken to ensure that personally identifiable
information about students is redacted, along with Social
Security numbers and other sensitive information about
employees.
Analysis
All state and local government agencies, including
community college districts, are covered by the California
Public Records Act. (CPRA; Gov. Code, § 6252(a).)
The definition of a "public record" under
the CPRA is so broad that virtually every paper or electronic
record created, used, maintained, or in the possession
of a college district is a "public record."
While the CPRA contains specific statutory exemptions
to disclosure for certain types of records, none of
these exemptions appear to apply to the types of records
requested by XLIX. As a result, we must look to the
requirements of other laws incorporated into the CPRA
by Government Code section 6254(k) (such as the Family
Educational Rights and Privacy Act (FERPA) 20 U.S.C.
§ 1232g), as well as the public interest "balancing
test" contained in section 6255.
Certain student and employee records must be protected
from disclosure
If part of a record is exempt, and part is not exempt,
Government Code section 6253(a) provides that, "Any
reasonably segregable portion of a record shall be available
for inspection by any person requesting the record after
deletion of the portions that are exempted by law."
A district's records most likely have exempt and public
information commingled. For example, an instructor may
turn in a grade sheet listing the names of students,
their student identification numbers, and the grades
they received. Depending on exactly how the request
is framed, such a record might be encompassed by a request
from XLIX because it lists grades awarded by an instructor,
but it also contains personally identifiable information
about individual students which must be protected from
disclosure pursuant to FERPA. The appropriate response
to such a request, and the approach taken by UC, CSU
and several community college districts, is to redact
personally identifiable information about students.
It is important to keep in mind that a record may
not mention a student by name but could nevertheless
include information which would make a student's identity
easily traceable. This is why UC and CSU have declined
to provide information to XLIX for classes involving
ten or fewer students or classes where all students
received the same grade. In such circumstances, someone
might easily be able to deduce what grade a particular
student received. Such disclosures would be prohibited
by FERPA. (See 34 C.F.R. 99.3, subdivision (f).)
In addition, Government Code section 6254(c) protects
employment records that would be considered "personnel
records." The general right to privacy under the
California Constitution (Cal. Const., art. I, §
1), is also incorporated into the CPRA through Government
Code section 6254(k) and protects employees from certain
types of disclosures of personal information. With regard
to employees, we believe the constitutional right to
privacy and the Federal Privacy Act of 1974 (5 U.S.C.
§ 552a) would protect Social Security numbers and
employee position numbers which could be linked to sensitive
personal information such as home telephone numbers
and addresses, and other information in the employee's
personnel file. However, it does not appear that the
name of the employee, by itself, is exempted from disclosure.
Thus, in responding to a request from XLIX, a district
would need to redact employee identification and Social
Security numbers from faculty grade reports, but the
name of the faculty member would need to remain visible.
In sum, although it appears that XLIX is not generally
requesting confidential records, care must be taken
not to inadvertently disclose such records in complying
with XLIX's records requests.
The "Balancing Test"
Even where no specific exemption applies, a public
entity may decline to provide public records if it determines
that the public interest in keeping the documents confidential
clearly outweighs the public interest in their disclosure.
(Gov. Code, § 6255.)
As discussed earlier, some faculty have expressed
legitimate concerns that providing information requested
by XLIX would interfere with academic freedom, result
in possible loss of employment for faculty who grade
more strictly, and impact on collective bargaining.
It has been suggested that such concerns might justify
withholding the requested records under the "balancing
test."
The press articles available on the Internet concerning
this issue show that a significant number of students
feel it is in their interest that these records are
public. Under the balancing test, the public interest
of the students will have to be weighed against the
public interest of the district and the faculty in non-disclosure.
We are aware that some districts have chosen to reject
public records requests from XLIX. However, because
UC has lost its case against XLIX at the trial court
level and a growing number of higher educational entities
are complying with XLIX's requests, we believe that
refusing to comply is a risky strategy and may well
lead to litigation with XLIX. In this connection, it
is important to understand that if a request for records
is denied and the requesting party prevails in a suit
to compel disclosure, the public entity may be required
to pay the attorney fees incurred by the requestor.
(Gov. Code, § 6259.)
How are your district's records maintained?
Although various statutes and regulations address the
types of records colleges are to maintain, districts
nevertheless have considerable discretion in the way
paper and electronic records are created, used, and
stored. Therefore such practices vary from one district
or college to another.
The first question to answer is whether you have records
which are responsive to a request from XLIX. Keep in
mind that the CPRA does not obligate a public entity
to create records--only to provide those public records
not exempted from disclosure by the Act.
Assuming you do have records which are responsive
to the request, the relative ease or burden of complying
with a request from XLIX will vary depending upon how
the records are kept. How difficult is it to extract
public information from non-public information? How
hard is it to provide records with the exempt information
redacted?
Unfortunately the degree of the burden, by itself,
does not exempt a district from compliance. However,
if a request is overly broad and providing the requested
records would be extremely burdensome, you may ask that
the requestor narrow the scope of the request. In this
regard, a public entity has an obligation to assist
the requestor in focusing the request by identifying
responsive records the entity could make available with
less difficulty. (Gov. Code, § 6253.1.) Also, if
compliance with a request will be time consuming, you
can advise the requestor that additional time (beyond
the normal 10 day period for responding) will be required
to provide a full response. (Gov. Code, § 6253(c).)
Although the CPRA does not require college districts
to maintain their records in such a manner as to facilitate
easily responding to CPRA requests, the law requires
a response. Having to respond to the multiple requests
XLIX is likely to make over time for the same type of
information is a factor that may be worth considering
when making decisions regarding paper and/or electronic
record keeping.
What fees can we charge?
The law permits a request for inspection of public
records and, in that case, no fee can be charged for
simply making the records available for review. However,
in most instances the request will ask for copies of
records. If so, then fees can be charged to the extent
permitted by statute. (Gov. Code, §§ 6253(b)
(paper records), 6253.9 (electronic records).)
For paper records, a district may only charge "fees
covering the direct cost of duplication" unless
there is another specific statute mandating a different
fee structure. In this case, we believe that no other
statute applies. The "direct cost of duplication"
includes the pro rata expense of the duplicating equipment
utilized in making a copy of a record and, conceivably,
the pro rata expense in terms of staff time (salary/benefits)
required to produce the copy. A staff person's time
in researching, retrieving and mailing the record is
not included in the direct cost of duplication. ("Summary
of the California Public Records Act 2004," California
Attorney General's Office, pp. 4-5.) The case of North
County Parents Organization v. Department of Education
(1994) 23 Cal.App.4th 144, 147-148, narrowed the definition
of what comprises such "direct costs." One
trap for the unwary is that public entities often believe
they can charge a "reasonable fee" rather
than the "direct costs of duplication." It
does not appear that a "reasonable fee" standard
is lawful under general fee provisions of the CPRA,
as the "reasonable" fee concept was amended
out of the CPRA in 1976 and further limited by 1981
legislative amendments. (Ibid.) Thus there is clear
legislative intent to disallow a "reasonable fee"
standard and to limit the possible fees that can be
charged.
Conversely, with regard to requests for electronic
records, when a CPRA request makes it necessary for
staff to perform programming in order to compile electronic
records or to extract information from such records,
the requester must bear the full cost, not merely the
direct cost of duplication. (Gov. Code, § 6253.9(a);
"Summary of the California Public Records Act 2004"
California Attorney General's Office, p. 5.) However,
if the information is available in an electronic format
without programming and the records are requested or
provided in an electronic format, a district may only
charge for the direct costs of duplication. (Gov. Code,
§ 6253.9(a).)
Another variable is that a district cannot make the
information available only in an electronic format if
other formats (such as paper) are available and the
requester insists on obtaining paper records. (Gov.
Code, § 6253.9(e).) However, many requesters prefer
electronic information, and in spite of the fact that
programming may be necessary, a requester may be willing
to pay programming fees in order to have the record
available electronically, even if the requester did
not initially request electronic records. Another consideration
is that if a district has the requested record available
electronically without programming and only needs to
charge for a copy of the record, it may be far less
burdensome to offer an electronic copy if it is available.
We have been told by several institutions that XLIX
has been willing to pay reasonable programming fees
in order to obtain the requested information electronically.
Options for Dealing with Such Requests
We have set forth below some suggested strategies for
dealing with CPRA requests from XLIX or other such entities.
- Legislation:
Seeking a change to the CPRA that would exempt such
records.
- Recordkeeping: Keeping
district records in such a manner as to make compliance
with such requests less time and labor intensive and
thus less burdensome.
- Alternate formats:
If the requested records are kept in several formats,
offering the requester a format that would impose
the least amount of burden on the district.
- Provide online access to
the public: If a legislative solution cannot
be effected and XLIX continues to make requests for
data, districts and faculty may wish to explore the
possibility of putting the data online on district
and/or college websites. Creative approaches may allow
districts and faculty to present the data along with
other information that will provide added value for
the student and general public. As this information
would be presented in a way that is useful and free
to the public, it may discourage students from the
use of fee-based services such as XLIX.
Please also be aware that the Attorney General's Office
has informally advised us in the past that the CPRA
does not provide for "standing requests" for
public records, i.e. an entity such as XLIX is not allowed
to make a request for records that do not exist and
that may be available in the future, but must make separate
and distinct requests for existing records it seeks
to obtain.
Action/Date Requested: Advisory
only. Questions concerning responses to CPRA requests
should be directed to legal counsel for your district.
Resources
CPRA:
California Attorney General's Office
"Summary of the California Public Records Act 2004,"
FERPA:
The Family Policy Compliance Office
FERPA
Online Library (FPCO Opinions)
FERPA
Regulations
Steven Bruckman
Executive Vice Chancellor and General Counsel |
