News Organizations Join Forces to Sue UNC For Access to Records

On November 21, The Daily Tar Heel, the student newspaper at the University of North Carolina at Chapel Hill (UNC), Capitol Broadcasting Company, The Charlotte Observer, and the Durham Herald Company (Plaintiffs) filed suit against UNC under the North Carolina Public Records Law after UNC refused to release records relating to sexual assault investigations.

The suit is premised on a September 30 letter that the plaintiffs and “a coalition of interested entities” sent UNC requesting the following:

Copies of all public records made or received by the University of North Carolina at Chapel Hill (“the University”) in connection with a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct by the UNC Chapel Hill Honor Court, the Committee on Student Conduct, or the Equal Opportunity and Compliance Office.

In their letter, the organizations warned UNC that their “request is supported—and your response is being monitored by—a range of groups that advocate for transparency and press freedom, including Free Press and North Carolina Open Government Coalition.” The organizations also warned UNC that failure to provide the records by October 28 would be treated as “a denial of [their] request” because of UNC’s “failure to provide these same records in response to numerous prior requests.”

In an article published the day the request was submitted, Betsy O’Donovan, The Daily Tar Heel’s general manager, stated that the organizations requested the records “[b]ecause we don’t know what’s in the records, or in fact whether any records exist, there’s no way of understanding what it means for someone to have been raped at this university or to have been convicted.”

UNC failed to meet the October 28 deadline and claimed that it was unable to release the records under the Family Educational Rights and Privacy Act (FERPA). In a letter to The Daily Tar Heel, in which he explained his decision, UNC’s Vice Chancellor of Communications and Public Affairs Joel G. Curran wrote:

The University must once again respectfully disagree with the DTH’s assertion that releasing the names of students “found responsible” in these cases constitutes a “public service.” Rather, we’re firmly convinced that such disclosures would have quite the opposite – and devastating – impact on victims, as well as the campus community. Our point of view is directed by federal privacy law, the Family Educational Rights and Privacy Act (FERPA), and informed by many opinions ... held by victims, witnesses, investigators, counselors and others.

However, the plaintiffs contend in their complaint that because FERPA permits the disclosure of the final results of a “disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence,” UNC “has no legal justification” for not providing the documents in response to a records request.

In response to the suit, Curran stated that “Carolina has a profound responsibility to protect and vigorously defend the privacy of sexual assault victims and all students, including witnesses, who may be involved in a campus Title IX process.” The suit has already received extensive coverage in the press. The Student Press Law Center reported:

“Obviously, we feel like the law is on our side,” said Hugh Stevens, the attorney who filed the complaint. “There’s no point in filing the suit if you don’t think you’re going to win.”

UNC administrators, according to Stevens and the written complaint, have provided little in the way of bona fide legal arguments as to why disciplinary records in sexual assault cases are not subject to public records requests. The issue has long been contentious, with the papers and their legal counsel submitting multiple record requests and meeting with administrators before deciding to sue.

“When we met with them, most of their arguments were about policy,” Stevens said. “About how this would inevitably lead to invading the privacy of victims or accusers. They didn’t really make any argument as to the legal analysis because frankly I don’t know what they would have said.”

While the suit is complex and the outcome will hinge on the intersection of FERPA with the North Carolina Public Records law, FIRE’s Guide to Due Process and Campus Justice explains some of the complexities:

If you are found responsible for violent misconduct or a sex offense in a campus proceeding, your university may disclose your name, the violation you committed, and the punishment you received to any member of the public, including the news media. Universities do not have an obligation under FERPA to reveal this information. They may refuse requests to divulge it. (However, at public institutions, state laws may sometimes compel disclosure of these records.)

FIRE is disappointed that this suit became necessary, as have other suits relating to other records requests. For example, we reported last month that Knight News at the University of Central Florida won this year’s College Press Freedom Award after it was forced to file suits against the University of Central Florida for failing to release records in response to records requests. FIRE calls upon UNC to revisit its decision and release the records to the plaintiffs so they may report on matters of public concern.