Washington Law Review

Comment

I Would Like to Request Your Academic Records: FERPA Protections and the Washington Public Records Act

January 01, 2018 | 93 Wash. L. Rev. 1057

Abstract: The Washington Public Records Act is a broad mandate for the release of almost all public records. In response to a request, a state or local agency must produce the requested records unless a specific exemption applies. In part to enforce compliance on public agencies, the Public Records Act requires that a requester be compensated for statutory fees, costs, and attorneys’ fees if a government agency declines to provide a public record, is challenged, and the requester succeeds in court. However, within public education agencies, compliance with the Washington Public Records Act can run against the agencies’ requirements under the Federal Education Rights and Privacy Act. 

The Federal Education Rights and Privacy Act mandates a broader protection of student records than is provided by the Washington Public Records Act. An agency’s violation of the Federal Rights and Privacy Act can result in the loss of all federal education funds. Federal education funds are vital both to school districts and to post-secondary universities for student grants and secured loans. Thus, Washington education agencies are left in a Catch 22: release records and potentially lose federal education money or safeguard the records and pay substantial fines and fees under the Public Records Act. 

However, there is a potential failsafe. The Washington Public Records Act allows for courts to find public records exempted from production by an “other statute” that exempts production. Thus, Washington courts should find that the Federal Education Rights and Privacy Act is an “other statute” that exempts production of student records not otherwise exempted by the Washington Public Records Act.

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