The Electronic Records Study Commission (ERSC) met on Thursday, February 17, 2000 at 10:15 a.m. via teleconference between Fayetteville and Little Rock, pursuant to written notice fixing the place and time.

The following Commission members were present or absent as indicated below:

Name of Commissioner   Appeared

Jerry Rose Absent
John J. Watkins In Person (Fayetteville)
Carol Griffee Absent
Dennis Byrd In Person
Julie Cullen In Person
Susan Cromwell Absent
Jeff Porter Absent
Steve Russell Absent
Stewart Nelson In Person
Patti Hill Absent
Kristen Gould In Person
Darin Gray In Person (Fayetteville)
Mac Norton In Person (Fayetteville)

The meeting was called to order by Julie Cullen, who welcomed members and asked for any comments on the minutes of last meeting- none being made, the minutes were approved.

Julie Cullen says topic of this meeting is higher education issues.

Alice Lacey is the speaker from Fayetteville and works at UAF.  Lacey starts talking about FOI issues in Higher Education:

(can’t hear Fayetteville that well)

Says FOI questions are currently referred to University Relations

Says Susan Cromwell sent her information on proposed guidelines/problems:

1. Resources they’ll need in response to questions
2. Students are used to having their academic records protected
3. Possible PR problems - marketing problems

On file and FOI-able are the following:

John Watkins adds: This is under the so called Buckley Amendment or FERPA- Family Educational Rights of Privacy Act which says the university will release this information unless the student opts out - most students don’t opt out so the information is available.  He says that he and Alice Lacey have discussed whether the Arkansas FOI exemption for scholastic records consistent with FERPA - FERPA, despite being a federal law does not qualify as an exemption from the Arkansas FOI, nor does it supersede the FOI and that is because it is just a statute that says if you release this information you lose all of your federal money. It doesn’t say you can’t release this information. It just says if you do, here is what happens. The Arkansas FOI has the exemption for scholastic records - it is not clear under what little case law there is as to whether the term “scholastic records” covers the same information that is covered by FERPA which uses the “education records” defined by the Federal Department of Education. There is a potential problem lurking out there - these two statutes; federal and state work together. It is possible that certain records that do not qualify as scholastic records under the Arkansas act would nonetheless qualify as education records under FERPA. We would be required to release those records under the FOI law and the penalty for that would be to potentially lose federal education funding under FERPA. Unless our Supreme Court construes the term “scholastic records” under the FOI to mean the same thing as records subject to protection under FERPA, we’ve got a potential problem. The easiest way to do this is to do what a lot of states have done without having to face the litigation which is just to say any record that is covered by FERPA is exempt from disclosure under our FOI law.

There is a question regarding the intersection between federal and state law.

Gould points out the fact that FOI interaction exists also in K-12; maybe even more so...

Watkins says that state colleges and public schools should work together on this issues so that we don’t potentially lose federal funding. Watkins suggests that “we should be exemption neutral” All exemptions under act could be potentially effected by the fact that we make information available electronically. The electronic environment will effect the exemptions. He is leaning towards not making a recommendation on particular exemptions in that area but just calling attention to the particular problem.

Nelson talks about a particular case where the UA released their donors to a mailing list. If you choose to donate, can you choose not to have your name released to marketing companies??

Watkins: Same point he was making with respect to education records and databases - more people asking for and getting more information. Conflict between state law and federal law that we have yet to solve in Arkansas. (Referring to donors/mailing list) could this possibly affect privacy matters/issues and effect donors to UA? These questions will arise more now that we’re talking about electronic access - we need to tell the legislature this and give them concrete examples - doesn’t see how the committee can reach consensus on how this could be resolved. The committee can alert the general assembly to potential problems. They could make a report for the 2001 session.

There needs to be some reconciliation between FOI and FERPA. She doesn’t see how they have the resources to respond on an individual basis or to maintain the database. Would not be simple, would take resources.  

Watkins adds: This university is very large and is spread out over many acres - different locations = different records. Network for this?

Talk of different systems on campus...

Norton: Grey area with e-mails/personal e-mails/documents with both private and public information. How do you create a record if you don’t have the right software? Some states have required the purchasing of such software to create databases...

Cullen asks Lacey if she has any specific objections to the document.  It is agreed to read through the document to discuss later.

Cullen introduces Julie Cabe who is in LR with the AR Dept. of ED - to give the Higher ED Perspective.  Carol Futhey is with her and has handouts.

Cabe talks of concerns with privacy, things suggested in the draft of principles. Says their database has twelve million records and it is a major process to respond on an individual basis. This runs on the SS# of the faculty or student.

Watkins wants to know what kind of information is kept in the records.

Cabe: In files are: SS#, name, residence, county and state originally from, financial information, gender, race, ethnic group, DOB, enrollment statistics, transfer information, level of requirements completed, full-time or part-time, major, degree seeking, high school, age, SAT/ACT, remedial classes taken.

Byrd: What kind of database is this stored in ? What is the actual problem? Also talks about student ID numbers being their SS#, why are these the same?

Cabe: it helps when dealing with transfers from school to school...Problems encountered are: the definition of scholastic records differs from FOIA and FERPA. What may be releasable under FOIA may not be under FERPA. An amendment addressing this would be helpful. E-transmittal creates some difficulty. Also the largeness of the database, requested from other than state agencies would be a large undertaking.

Nelson: Do different schools have different formats for records? Are they saved in different formats/different databases? If we had the resources could these records all be saved in one place and you had the staff to run it?

Cabe: yes. Another thing is the Federal government is getting information on transfer rates and where students are transferring. The employment security division wants to track students by SS# so they can keep up with the kids and see if they are in the field they chose. There are privacy act concerns with big government tracking folks everywhere.

Cullen addresses the employment security division requests and Cabe says they are asked under the workforce investment act. They want to track and see if federal program dollars are being effective. Cabe says we really need to have a good policy in place. It is very complicated.

Gray: Do students have the opportunity to reject providing all information?

Discussion between all - student does not have opting out option, they can opt out of some of the questions and can use other ID# other than SS#, but the SS# is on record.

Lacey: Under FERPA, students can and do have access, can disagree with information and make comments.

Gray: Why are we asking privacy questions? Why do we care about religious preferences?

Lacey reads list of all system guidelines under FERPA.

Gray asks about marketing, potential for marketers, telemarketers.

Watkins: Do we want the government to know all of this? Do we want the public to know? Who has access?

Cabe: Also- protection for teachers. Student has the right to object to information releases. A stalker can look at the information, track the student down. We need to have a way of notifying the student about the information we have.

Nelson: With the size of the database, this will be a large database trying to keep up with everyones information, you will have to maintain who looks at the records, and that in itself becomes a record.

Watkins follows up with the nature of the problem with e-access and privacy. Uses an example of a case re arrest record with the FBI in New Jersey. There are usually exemptions or exceptions relating to privacy, and we do not have any exemptions

Cullen: Could we have someone come and talk regarding the domino effect of records? Also with the ESD tracking and changing privacy elements of the FOI - maybe notifying students of this and telling students they can opt out of certain things.

Watkins: 25 years ago Congress passed a privacy act that required agencies to tell you how they will use the information you give them. We could do something like this.

Cullen: Let’s review our draft principles - review of issues document.

Look at the two documents and think about the principles.

Everyone chooses to review the documents and talk about it at the next meeting.

Norton: pay attention to #4 of principles

Cullen: Think about the reconciliation of FERPA and FOI

Watkins: Concern over privacy issues, may need to make a recommendation to the legislature about problems and concerns

Cullen: March meeting, let’s look at the state of the state.

Further discussion regarding FERPA problem, security issues. Will be a significant debate further on these issues.

Gray: requests copy of FERPA act.

Watkins: also would like DEPT. of ED regulations.

Cullen suggests creating a link for it.

Cullen wants more members present before formal discussion is made on the committee’s scope.

Discussion on date of next meeting - March 17, noon to 3:45 p.m. is decided.

There being no other business to be transacted and upon motion duly made, seconded, and carried, the meeting was adjourned at 11:45 a.m.

Patti Hill, Secretary