In Better Government Ass’n v. City Colleges of Chicago, 2024 IL App (1st) 221414, the First District Appellate Court navigated the intersection of the Illinois Freedom of Information Act (5 ILCS 140/1 to 11.6 (West 2018)) (“FOIA”) and the Federal Education Rights and Privacy Act (20 U.S.C. § 1232g (2012)) (“FERPA”). FOIA provides transparency and accountability to all levels of government in the State of Illinois by requiring public entities to allow access to records to members of the public upon request. FERPA protects the privacy of student education records in all schools that receive federal funding from the U.S. Department of Education. However, when there is a FOIA request for records under FERPA, the question becomes: which of these competing interests takes priority?
The issue in Better Government Association involved a FOIA with the defendant requesting the release of information related to the defendant’s graduation rate in 2018. The defendant objected to the disclosure of the records under Section 7(a)(1) of FOIA, which exempts the release of data “specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” The defendant claimed that even if the requested information was redacted, the students would still be identifiable.
The circuit court held that FERPA is a funding statute that does not specifically prohibit the disclosure of student education data. Instead, the circuit court said that FERPA only prohibits the release of information if the defendant wanted funding, which it said was not the same as specifically prohibiting it. The First District overturned this decision, finding that FERPA doesn’t prohibit the release of education records in all circumstances, but it does prohibit the release of personally identifiable information in education records without the consent of students or their guardians. The court held that it was unreasonable to find that a complete loss of federal funding for violation of FERPA is not a specific prohibition for schools trying to comply with FOIA. The First District remanded the case to the circuit court for review of the information requested and determination of whether the information could be redacted in a way that would protect student privacy and allow disclosure.
This particular intersection of FERPA and FOIA has never been reviewed by Illinois courts prior to this decision, but several state and federal courts around the country have come down on both sides of this issue. It is likely that this will continue to be litigated in courts. Schools that receive FOIAs for student records should be mindful of the way they review the requests to ensure they are complying with both FOIA and FERPA under this decision. Additionally, in Illinois, this matter is further complicated by the Illinois School Student Records Act, 105 ILCS 10/2, which controls student privacy in all public early childhood and K-12 schools.
For more information about this article, please contact Tressler attorney Katie Ngo at kngo@tresslerllp.com