Disclosure of Student Discipline Records Under Washington Public Records Act

A Washington Title IX investigation can have lasting and serious effects on an accused student.  A Washington appeals court recently concluded that the names of students found responsible for a crime of violence or a nonforcible sexual offense in disciplinary proceedings at a public university are subject to disclosure under the Washington Public Records Act (“PRA”).

According to the appeals court’s opinion, journalists submitted a public records request to a university  seeking results of disciplinary proceedings with findings that “a student was responsible for a crime of violence or nonforcible sexual offense in the last five years.” The university provided tables of the offenses, each including the disciplinary action taken, but with the students’ names redacted.  The university also provided an exemption log which identified the student’s names as exempt from disclosure under RCW 42.56.230(1).

The journalists sued the university to get the students’ names.  The university subsequently concluded the names were not exempt and notified the involved students it intended to disclose their names.  Seven students sought injunctive relief.  The trial court denied the injunctions, finding the students failed to show their names were exempt.

Ultimately, four students remained in the case before the appeals court.  The appeals court noted the PRA requires “broad public disclosure.” Exemptions to PRA’s disclosure requirements are narrowly construed to promote transparency and accountability and to protect the public interest. Records may be exempt if they fall within the specific exemptions stated in the PRA, within an exemption or prohibition of disclosure stated in another statute, or within an exemption provided in the Washington Constitution.

The students pointed to the “student file” exemption in the PRA at RCW 42.56.230(1).  It exempts “[p]ersonal information in any files maintained for students in public schools.”  One issue was whether the disciplinary results were located in student files.  The Washington Supreme Court has stated the exemption protects records “in a public school student’s permanent file. . .” Lindeman v. Kelso School District No. 458.

The appeals court rejected the journalists’ argument the tables provided to them were not contained in the record of any individual student and found the disciplinary results contained “personal information” in “files maintained for students.”

The students argued public universities and colleges were “public schools” under the statute. “Public schools” is not defined in the PRA. The appeals court considered the dictionary definition, which included primary and secondary schools, but not post-secondary institutions. The appeals court considered the entire statutory scheme, the definition of “public schools” in another statute, and the description of the “public school system” in the state constitution. The appeals court found that “public schools” did not include postsecondary institutions under either the plain meaning of the term or the rules of statutory construction. The unredacted results were therefore not exempt under the “student file” exemption.

The students also argued that the unredacted disciplinary results were exempt under the Family Educational Rights and Privacy Act of 1974 (“FERPA”). The university and journalists argued, however, that FERPA’s “final results exception” allowed disclosure of certain records of violent or sex offenses.  The exception states that a college or university is not prohibited from disclosing the final results of a disciplinary proceeding if it determines through that proceeding the student violated the institution’s rules or policies with respect to a crime of violence or nonforcible sex offense. 20 U.S.C. § 1232g(b)(6)(B).

The students argued the final results exception did not sufficiently define “crime of violence” and “nonforcible sex offense” and was therefore unconstitutionally vague. The appeals court noted the regulations governing FERPA define what qualifies as crimes of violence and nonforcible sex offenses for purposes of the exception. The appeals court therefore found the final results exception gave fair warning of the offenses that could be disclosed.  The students had not shown the exception was unconstitutionally vague.

The appeals court also rejected the students’ argument that the university’s code of conduct in regulations WAC 516-21-310(1) and WAC 516-26-070 constituted an “other statute” that prohibited disclosure. The appeals court pointed out that WAC 516-21-310(1) provided that conduct records would not be disclosed to a member of the public, except in certain circumstances, including “as required by law or court order.” The appeals court found that disclosures under the PRA were “required by law.” The appeals court further found that the regulations did not constitute an “other statute” without a corresponding statutory provision exempting the records from disclosure.

The appeals court also found that the university gave the students sufficient notice their records could be disclosed.

The appeals court affirmed the trial court’s order requiring the university to disclose the unredacted results.

This case shows that the name of a student found responsible for sexual misconduct by a public university may be subject to public disclosure. Students should take all Title IX allegations seriously and seek the guidance of an experienced Washington Title IX defense attorney as soon as they learn of allegations or a potential investigation. If you believe you may be facing a sexual misconduct investigation at your school, contact Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.


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