Dustin McDaniel vs. FOIA: Regrettably, FOIA Loses

My children will be adolescents in a few years; occasionally, when I recall the way I behaved towards my parents as a teenager, I react less in happy anticipation than in horror. Too often as a teenager, in an attempt to get my way, I said things to my parents that no serious person would ever say. For instance, I remember attempting to justify a report card that detailed my sub-par academic performance by explaining to my folks: “Look, grades don’t mean anything.” I guess it’s forgivable when teenagers make ridiculous arguments, but it’s harder to forgive when the person who makes ridiculous arguments is our attorney general – who has just issued an opinion in which he explains that grades don’t mean anything.

More precisely, Attorney General Dustin McDaniel recently issued a very disappointing opinion interpreting the Arkansas Freedom of Information Act (“AFOIA”) and the federal Family Educational Rights and Privacy Act (“FERPA”) in response to a request from Representative Nate Bell of Mena. Rep. Bell asked McDaniel to offer his legal opinion on two questions.  First, is a public law school obligated to disclose the transcripts of current or former students, after redacting every piece of information from the transcripts except for the letter grades, if the transcripts are requested under AFOIA by a member of the public?  Second, is a public law school obligated to disclose unredacted copies of transcripts if the documents are requested under AFOIA by a member of the law school’s faculty who needs the transcripts to complete grade inflation research the professor is conducting as part of his or her job duties at the law school?  McDaniel answered no to the first question and refused to answer the second question.  See Ark. Att’y Gen. Op. Nos. 2013-027 and 2012-083, which together form a single case.

Both questions involve the interplay of AFOIA and FERPA.  Under AFOIA, the general rule is that all public records are open to inspection to all citizens of this state, but AFOIA qualifies the general rule with several exceptions.  One exception is that “education records” under FERPA don’t have to be revealed.  However, that exception is limited in scope: If producing the records is consistent with FERPA, then AFOIA still requires disclosure of the records.  And disclosing education records is consistent with FERPA (1) after all personally identifying information is redacted from the document, or (2) when unredacted records are provided to school officials, such as teachers, who have “legitimate educational interests” in the records.

The first question in Rep. Bell’s opinion request involves FERPA’s rule regarding redacted documents.  After removing all information from the transcripts except for the letter grades, it would be impossible to determine the identity of the student who is the subject of the transcript.  That means disclosing the document is consistent with FERPA.  However, under a separate AFOIA rule, a redacted document only has to be disclosed if, after the redaction, the information remaining on the document is not gibberish.  In this case, McDaniel concluded that letter grades on a transcript, standing alone, are gibberish.  That is clearly false.  Any citizen of Arkansas who has attended any school understands precisely what grades on a report card or transcript mean, even with all other data hidden.  Such a citizen could, for example, assess students’ grade point averages, analyze grade distributions, discover how often particular grades are awarded, or learn how common it is for students to earn mostly A’s and B’s.  In the real world, we regularly hear students boast that “I got all A’s and B’s!”  It happens all the time.  Yet McDaniel says that such a student is speaking gibberish.  In short, McDaniel opined that Arkansans are not sufficiently intelligent to understand the meaning of grades on a report card transcript without other information.

The second question in Rep. Bell’s opinion request involves the FERPA rule allowing schools to disclose unredacted education records to school officials with a legitimate educational interest in reviewing the documents.  McDaniel refused to answer this question, concluding that whether a particular teacher has a legitimate educational interest is a question of fact for the school or a court.  This is surprising given that the office of the Attorney General has issued numerous opinions addressing the application of FERPA to the specific facts of a case, including several opinions that implicitly assessed the legitimate educational interests rule.  See, for example, Ark. Att’y Gen. Op. No. 2007-061 (opining that “the records at issue here do not fall within any of the exceptions” contained in FERPA) (A.G. McDaniel); Ark. Att’y Gen. Op. No. 2004-18 (opining that “[a]though FERPA does contain some exceptions from its confidentiality requirements, I do not believe any of those exceptions would apply to the sample forms you have supplied me”) (A.G. Beebe); Ark. Att’y Gen. Op. No. 2001-146 (opining that “[a]lthough the FERPA does contain some exceptions from its confidentiality requirements, these records do not fall within any of the exceptions”) (A.G. Beebe); Ark. Att’y Gen. Op. No. 2001-147 (opining that no FERPA exception applies) (A.G. Beebe). Mysteriously, when it comes to AFOIA rights, McDaniel behaves as if he has forgotten this sheaf of opinions.

Attorney General McDaniel answered Rep. Bell’s first question with plainly incorrect legal analysis that insults the intelligence of every citizen of this state, and he refused to answer Rep. Bell’s second question on spurious grounds. I appreciate the responsibilities that McDaniel must carry out – the last time I ran into him, I complimented him on the quality of the opinion he issued that addressed the politically treacherous issue of the constitutionality of voter ID. But it’s a pity that the quality of attorney general advisory opinions under McDaniel isn’t more consistent: this opinion is down on its hands and knees, begging not to be taken seriously.

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