UT releases copy of NCAA letter of allegation with fewer redactions

KNOXVILLE, Tenn. (WVLT) -- When the University of Tennessee released a copy of the NCAA's letter of allegations last week there were many sections that had been redacted or erased all together. WVLT requested an original copy.

UT has released a new version of that letter with some of the missing information appearing. Most of the erased portions of the letter do appear, but they are covered in black marker.

Much of the document still remains covered in solid black ink despite our request.

Both versions are attached for comparison. UT's response to our request for this version is below:

This letter responds to your request for an unredacted copy of the Notice of Allegations from the NCAA dated February 21, 2011. The University redacted the Notice of Allegations as posted on February 23 in order to comply with the Family Educational Rights and Privacy Act (“FERPA”). As you are aware, FERPA is a federal law protecting student privacy that prohibits the University from disclosing personally identifiable information from education records unless a student consents to the release of such information. The University must comply with federal and state law on this issue, and Tennessee courts have recognized that federal confidentiality laws are exceptions to the Tennessee Public Records Act by virtue of the Supremacy Clause of the United States Constitution. As expressly authorized by the Tennessee Public Records Act, the University has promulgated a rule to maintain the confidentiality of records required to be kept confidential as a condition for the receipt of federal funds, such as records protected by FERPA. See Tenn. Code Ann. § 10-7-503(b); Tenn. Comp. R. & Regs. 1720-1-6-.01 (2011).

FERPA, as interpreted and explained by the Department of Education’s regulations, protects more information about a student than just grades and transcripts. It also includes the portions of the Notice of Allegations the University has redacted. Enclosed is a copy of a letter from the Department of Education’s Family Policy Compliance Office (“FPCO”), which interprets and enforces FERPA, confirming that FERPA protects information contained in a record relating to NCAA violations by an educational institution. After receiving your letter, the University’s Office of the General Counsel contacted the FPCO, which confirmed that the University’s understanding of FERPA is correct and that FERPA requires the University to remove a student’s personally identifiable information before producing a record to a Tennessee citizen in response to a Public Records Act request. FERPA defines “personally identifiable information” broadly to include: a student’s name; information that indirectly identifies the student; “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty;” or “information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.” 34 C.F.R. § 99.3 (2010).

The University’s redactions are designed to comply with FERPA and to protect student privacy, not to withhold information from the media or public. Indeed, the vast majority of the redacted information is already publicly known and has been widely reported. Nevertheless, FPCO has also consistently advised that “there is no exclusion from the definition of ‘education records’ for information that is available from another source, even if the information is publicly available.” Thus, FERPA prohibits the University from releasing student information contained in the Notice of Allegations even if the information has already been reported by the media. The Department of Education has advised educational institutions “to be sensitive to publicly available data on students and to the cumulative effect of disclosures of student data,” particularly in cases involving information about “students or incidents that are well-known in the school or its community.” Because of the substantial amount of media coverage of the NCAA investigation, the University was required to redact more information than what you may consider typical in order to “de-identify” students in compliance with FERPA. There is no FERPA exception that allows the University to release information that is a matter of general public interest.

Given the extensive media coverage of the Notice of Allegations, and in light of media requests such as yours, it is very possible that our student-athletes, none of whom has done anything wrong, will be the subject of speculation. Given the circumstances in this case, including that speculation about our students is likely to be more invasive of their privacy than disclosure of information about them in the Notice of Allegations, this is a unique circumstance in which the University believes it may be in the students’ best interests to waive their privacy rights under FERPA and consent to release of information in the Notice of Allegations. The University therefore provided releases to the students about whom information is already publicly known and provided them with the opportunity to decide whether to consent to the disclosure of their information in the Notice of Allegations. None of the students chose to voluntarily release their information to the public. The University’s decision to provide the students an opportunity to consent to disclosure was based on the unique circumstances of this situation and establishes no precedent for future cases.

As stated previously, the University has not been trying to conceal information, but rather has been attempting to comply with FERPA and to protect student privacy. Upon reexamination, we have determined that there is another way to redact the Notice of Allegations that both protects student privacy and avoids creating the impression that we are attempting to conceal information. We believe the enclosed, modified Notice of Allegations enables you to conclude that the vast majority of the redacted information is already publicly known and that the University is not withholding information except as necessary to comply with the law.

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