This month on the SPFI hotline: Public records and Title IX

Day and night, FIRE’s Student Press Freedom Initiative answers hotline calls from student journalists with questions about defamation, First Amendment issues, copyright, and more. Each month, in order to spread the knowledge we share on the SPFI hotline, we’ll highlight one question we answered and talk through ways student journalists across the country can think through these issues.

This month’s question: What records might I be able to obtain related to Title IX investigations and sexual assaults on my campus?

The short answer: There are several different records you might be able to obtain related to sexual assault at your institution, depending on whether you attend a private or public institution as well as relevant state laws: 

• Records including the names, violations, and disciplinary sanctions faced by those found responsible for Title IX violations that are crimes of violence or nonforcible sex offenses; 
• Records from local law enforcement;
• Your institution’s crime log and annual Clery Act report, which should indicate reported sexual assaults;
• If there is a pattern of incidents capable of repeating itself, a “timely warning” from campus security containing enough information about the pattern for students to protect themselves; and
• If you have a student source willing to sign a release of records, a copy of that student’s FERPA records, which may include records about Title IX proceedings in which they were a victim or accused.

Not all of these records will be available all the time; the availability often depends upon the type of institution you attend, as well as state law.

And, since we know from a recent nationwide survey of college newspaper editors conducted by FIRE that sexual assault and Title IX are among the topics editors most believe administrators disapprove of them covering, it’s also no surprise that student journalists often have trouble receiving records related to these issues. 

The long answer: As we discussed as part of last month’s question about the applicability of public records laws to sworn law enforcement at private institutions, public records laws — sometimes referred to as Freedom of Information Acts, or FOIAs — vary vastly from state to state. When we start looking at what records you might obtain related to sexual assault and Title IX, the question becomes a messy web of state and federal laws, including state public records laws, Title IX, FERPA, and the Clery Act. 

Let’s take a quick moment to define these laws.

Public records laws define what documents and other records held by state agencies must be disclosed to the public upon request, and what exceptions to disclosure exist. These are sometimes referred to as right to know or freedom of information laws. As discussed, these vary from state to state, and they almost always apply only to public institutions. (Meaning that if you attend a private college or university, it’s highly unlikely they will be required to disclose records pursuant to state records laws.) Even at a public institution, exceptions to public records laws vary from state to state, so not all documents will be available.

Title IX is the federal law that prohibits sex discrimination at any institution of higher education in the United States that accepts federal education funding, including student loans. Since almost every college and university takes some federal funding, Title IX is binding upon most institutions — public and private. Title IX’s prohibition on sex discrimination also prohibits sexual harassment, including sexual assault, when the harassment is unwelcome and is so severe, pervasive, and objectively offensive as to prevent the victim from benefiting from the institution’s resources.

FERPA is another federal law — the Family Educational Rights and Privacy Act — that protects the privacy rights of matriculated students. It prevents all colleges and universities that take federal funding — again, including public and private institutions — from disclosing the educational records of students without prior written consent, with some rare exceptions (for example, to comply with a subpoena). It also requires institutions to disclose to eligible students the contents of records that make them identifiable, directly or indirectly.

If you’re a lucky journalist with an especially willing student source, you may be able to obtain that student’s records.

The Clery Act is yet a third federal law that requires all colleges and universities that take federal funding to make available a daily crime log listing basic information about crimes that occur on or near campus. It also requires institutions to create an annual security report counting crimes on or near campus, to warn students in a “timely” way if there’s a pattern of crimes that might repeat, and to warn students immediately if there is an imminent threat to health or safety.

So what records might I be able to get?

Records related to the names, violations, and sanctions against those found responsible for sexual assault and other “violent crimes”

The first type of record you may be able to obtain, if you’re reporting on Title IX at a public institution, are those that list the names, violations, and disciplinary actions taken against those who have been found responsible for sexual assault. This will work only if your institution is public, and you would obtain these records by filing a public records request with the records custodian of your university. (Need help figuring out how to file a records request or to whom you should submit it? Check out SPFI’s “FOIA & Public Records 101” training on YouTube, or call the SPFI hotline at 717-734-7734, and we’ll be happy to help!)

But your luck at obtaining these records will depend on state public records law. In order to receive these records, they must qualify as public records under your state’s definition of that term. They also cannot fall within any exception in that state law.

In North Carolina, for example, the state supreme court has held that some records related to a finding responsibility under Title IX are, in fact, public records, and not within any exception in the state’s sunshine law. This ruling came after a long court battle between The Daily Tar Heel student newspaper and the University of North Carolina at Chapel Hill — the DTH requested this information in 2016 and only received these records in 2020.

The resulting records may be redacted to maintain the confidentiality of other students involved, but they may be nonetheless helpful.

Your college or university might try to claim these records are confidential under FERPA, but they’d be wrong. That’s what UNC attempted, but the state supreme court aptly noted FERPA’s confidentiality guarantees make an exception for disclosure of “final results of any disciplinary proceeding . . . against a student who is an alleged perpetrator of any crime of violence . . . or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation.”

In other words? Once their school finds a student responsible for sexual assault or any number of other violent crimes, that fact is not confidential under FERPA. Thus, so long as student records qualify as public records in your state and no other state law exception applies, you should be able to obtain records about the names, violations, and sanctions against those found responsible for committing sexual assault on campus.

Law enforcement records

Law enforcement records are public records in almost every state, so if someone called the local police in connection with a sexual assault or other crime on campus, you may be able to obtain documents such as police reports and law enforcement communications related to the incident. To do this, you would need to file a public records request with the police department.

It’s important to note, though, that even these records may fall within exemptions per your state’s public records law. For example, many states exempt records related to ongoing investigations, or records where release could imperil someone’s safety. While a bit out of date, this guide from the Reporters Committee for Freedom of the Press specifically addresses exceptions to public records laws related to law enforcement.

Your institution’s crime log and annual Clery Act report

One set of documents you should absolutely be able to obtain, regardless of whether your institution is public or private, is its daily crime log and annual security report, both of which the college must maintain under the Clery Act.

The daily crime log must include all reports of crimes that occur on or adjacent to campus, and must be updated every 48 hours. It will include the date the crime was reported, the date and time of the alleged crime, a brief description of the allegation (such as “theft” or “assault”), the location of the alleged crime, and the disposition of the complaint.

Colleges and universities must make the last 60 days of this log available upon request, and many maintain their logs publicly so you can just go online to see them. If you’d like to see logs further back than 60 days, you should be able to request up to the last seven years of records from your campus security department.

In addition to this daily crime log, the Clery Act requires colleges and universities to put out an annual security report, which includes crime statistics from the prior year, including things like the number of reported sexual assaults.

An individual student’s FERPA records

If you’re a lucky journalist with an especially willing student source, you may be able to obtain that student’s records, which may include information related to Title IX and sexual assault investigations or proceedings in which that student was involved as the victim or alleged perpetrator. This is an option for journalists at both public and private institutions.

For a journalist to obtain these records, the source must be willing to either request them and relay them to the journalist, or sign a FERPA waiver allowing the journalist to obtain the records directly from the university. The resulting records may be redacted to maintain the confidentiality of other students involved, but they may be nonetheless helpful.

If you’re a student journalist and you need help with a records request — with writing a request, figuring out who to send it to, exploring your options for what to request for your story, or with dealing with denial of a request — please call FIRE’s Student Press Freedom Initiative at 717-734-SPFI (7734) for help, or request help here.

Are you a student journalist, student media staffer, or student media adviser with a legal question? Call SPFI’s hotline day or night at 717-734-SPFI (7734).