NC State says it’s “committed to a policy of openness, honesty and cooperation” in providing public records. But after weeks of correspondence with the University, Technician has been repeatedly denied records some lawyers say should be public.

Technician filed a public records request Oct. 4 for emails between Student Body Officers and other members of Student Government. NC State denied Technician’s request Oct. 10, citing the Family Educational Rights and Privacy Act, a federal law that protects the privacy of student education records.  

In an email statement to Technician, University spokesperson Mick Kulikowski said emails that belong to or are utilized by students are considered education records and can’t be released in accordance with FERPA and University’s FERPA regulation.

“Please note that education records are not public records and therefore are not subject to public records requests,” Kulikowski said in the email. “As defined by NCGS 132-1, a student is not a ‘public officer or official (State or local, elected or appointed)’ who is transacting business on behalf of NC State University.”  

However, there is a discrepancy among University administration as to whether student emails are educational records. 

Don Hunt, senior vice provost for Enrollment Management and Services, is listed as the contact under the University’s FERPA regulation. He told Technician in an email that the University Registrar’s Office — which is housed within Enrollment Management and Services — is responsible for maintaining educational records. He said emails that belong to or are utilized by students are not maintained in an individual’s education record.

“Student email in general would not automatically be considered an educational record,” Hunt said in the email. “Emails used to support academic actions may be considered an educational record, such as a grade appeal, where the student provides evidence of assignments etc.”  

Technician emailed Lynda Mottershead, a member of the Office of General Counsel and the University records officer, Oct. 11 for further explanation of the justification for denial. Mottershead said these records are not public, and the University views the matter as closed. 

In a phone call Nov. 8, Mottershead referred Technician to the deputy general counsel, Shawn Troxler, for additional explanation. Troxler declined to comment for this story.

Though the University maintains that these records aren’t public records, some lawyers, including Hugh Stevens, a First Amendment and media lawyer who’s successfully represented the media in a number of high-profile lawsuits involving access to public records, said NC State’s justification for the denial of Technician’s request isn’t adequate.  

“I think these records are not under FERPA, and I don’t think they are foreclosed from being public records under the law,” Stevens said.

SG is funded through student fees paid to NC State by all full-time students, and it’s tasked with allocating this fee money — which totaled $424,000 in the 2023 fiscal year — in what it deems as “the best interest of the student body,” according to NC State’s fees explanation. 

Brooks Fuller, director of the North Carolina Open Government Coalition, said under North Carolina’s public records law, records made or received in the transaction of public business are public unless they fall under specific exemptions. 

“Any record of government activity, which includes things like how student fees and tuition and public money is spent and allocated, is presumptively public unless there’s a very narrow exception that prevents that specific record from being disclosed,” Fuller said.

Fuller said the definition of a public record isn’t limited to records created by public officials or employees of a government agency.

“The definition of a public record is any record that is made or received in the transaction of public business, and so it’s the substance of the record, and not necessarily its creator, that makes something a public record,” Fuller said.

Jonathan Gaston-Falk, staff attorney for the Student Press Law Center, said public access to records is critical to uphold transparency and accountability. 

“With our public institutions, they have an obligation to be open and transparent because the public has the right to figure out, for example, what’s happening with their money — what sort of projects are not only being funded, but what projects are not,” Gaston-Falk said.

Fuller said North Carolina courts have consistently ruled that exceptions to the public records law should be interpreted narrowly, and FERPA doesn’t justify withholding all records that tangentially reference a student. 

“FERPA does not give university officials the ability to put a cloak of secrecy over everything that discusses a student,” Fuller said. “That’s just not how FERPA was designed. It’s not FERPA’s goals, and it should not be how FERPA is interpreted even today.”

FERPA protects records that directly relate to a student’s educational file, such as transcripts or academic credentials. Fuller said the Office of General Counsel should be diligent in examining the substance of records to determine whether they’re protected under FERPA.

“On one hand, I really understand their concern over student privacy, but I also think that university general counsels get paid a whole lot of money to understand FERPA really well, and they should understand its basic limits and what it does and does not reach,” Fuller said.

Other universities in the UNC System have challenged records request denials in court, Fuller said.

“Our universities are sometimes really slow to respond to public records requests until the threat of a lawsuit or litigation, and I find that unfortunate,” Fuller said. “They shouldn’t have to be threatened with a lawsuit to provide public information.” 

In 2011, a Wake County Superior Court judge ordered UNC-Chapel Hill to release records including student-athlete parking tickets after the university cited FERPA to withhold them — a case Fuller said is a parallel set of circumstances to this denial.  

“It just really paints a very clear picture that just because a record discusses a student does not make it an education record,” Fuller said.

Gaston-Falk said public access is imperative to civic engagement.

“This is for both sides of the political spectrum,” Gaston-Falk said. “Either side should be able to access those public documents in order to figure out whether our government is functioning appropriately. It’s a nonpartisan issue.”