Last week I made an open records request to North Dakota State University’s legal department asking for specifics as to any punishment handed out to the football players convicted for submitting fraudulent petition signatures earlier this year. University President Dean Bresciani, among others, have made ridiculous claims about the punishment for the players being protected under federal law, which doesn’t make sense when other universities (including recently the University of North Dakota) release details about student athletes being punished all the time.
In response I received this response from NDSU’s legal counsel:
I am in receipt of your request to Mimi Monson set forth below. I note that you have not requested records. Instead, you have requested that NDSU provide ‘the details’ of any actions taken. The Attorney General’s Open Records Manual (2009 ed., pg. 9) establishes that “[e]xcept for certain computer records, however, nothing requires a public entity to create a new record, disclose records which do not exist, or disclose records it does not have in its possession or custody. A public entity also is not required to create a new record by compiling information from other records.” See also N.D.C.C. § 44-04-18(4); N.D.A.G. 2005-O-13; and N.D.A.G. 98-O-20.
In the event that you are asking for records pertaining to the students’ disciplinary matters, then I would refer you to President Bresciani’s comments regarding this matter which can be found here: http://www.ndsu.edu/news/view/article/15339/. Additional records pertaining to the students’ discipline are confidential under the federal Family Educational Rights and Privacy Act (“FERPA”). The University is not permitted to disclose these records as indicated by the Attorney General’s Open Records Manual (2009 ed., pg. 28) which reads: “[FERPA] provides that ‘education records’ other than directory information must be confidential and may not be disclosed without prior written consent.” See also 20 U.S.C. § 1232g; and 34 CFR Part 99.
Please let me know if you have any questions. Thank you.
CHRISTOPHER S. WILSON
General Counsel / Office of General Counsel
Note that I did request records. Obviously there are going to be memos and other official documents pertaining to any action. I do a lot of open records requests, and I’ve never had a problem initiating a request by asking for “details” on a specific matter like this.
This is the sort of tortured legal justification for denying records I usually get from NDSU when they don’t want to give something up. In response I’ve submitted a complaint to the North Dakota Attorney General’s office who will take about 6 months or so to review the matter and issue a ruling.
As it happens, I actually filed a complaint some time ago against NDSU over their refusal to release information pertaining to an incident between Women’s Athletics Department director Lynn Dorn and a student which resulted in Dorn being suspended. I didn’t request any information specifically about the student, mind you, but rather just a description of the incident.
The AG’s office should be ruling on that matter soon, and that could have a lot of impact on my current request.