GALLATiN COUNTY CLERK OF DISTRiCT COUR"r" JE;,:;i~ER So1ANDO;' ZOIZ fiflfl 1 fil'l 11 39 FILED BY _-;;-;;::;;-;:;:_ _ DEPUTY MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY * * * * * * * THE BOZEMAN DAILY CHRONICLE and THE MONTANA NEWSPAPER ASSOCIATION, Plaintiffs, v. ) ) ) ) ) ) ) Cause No, DV-11-581A ORDER ON SUMMARY JUDGMENT MONTANA STATE UNIVERSITY, Defendant. ) ) ) ) This case was initiated on June 13, 2011, when the Plaintiffs The Bozeman Daily Chronicle and The Montana Newspaper Association (collectively, the Chronicle) filed their Complaint and Pemion for Declaratory Relief. The Chronicle filed an Amended Complaint and Petition on August 24, 2011. The Amended Complaint alleges that the Chronicle requested public records from Defendant Montana State University (MSU) relating to MSU's investigation into the conduct of an MSU associate professor and his placement on administrative leave. The Complaint further alleges that MSU has declined to release the documents based 1 on its assertion of that the privacy interests of the professor and the students involved in the investigation outweigh any public right to know. The Complaint requests the Court to determine that the requested documents are public documents in which the public's rights to know and inspect outweigh any privacy interests in the information contained in the documents and to order MSU to release the documents. The Chronicle's request for documents includes the following: 1) the report resulting from the investigation of Professor Komiyama which was delivered to MSU President Cruzado; 2) any communications between the investigators and supervisors of Professor Komiyama; and 3) any memoranda created by or for the investigator. MSU has provided the Court with unredacted copies of all documents it determined were responsive to the Chronicle's request for the Court to review in camera. The parties have filed cross-Motions for Summary Judgment. The Motions have been fully briefed and the Court held a hearing on the Motions on March 1, 2012. Based on a review of the parties' briefs, the documents at issue and the oral arguments from the parties at the hearing, the Court orally ruled that MSU shall release the requested documents to the Chronicle, with appropriate redactions as indicated by the Court, In so ruling, the Court concluded that neither federal nor Montana law precluded the release of the documents, With regard to federal law, MSU argues that the documents requested by the Chronicle constitute "education records" as defined in the Federal Education 2 Rights and Privacy Act (FERPA). 20 U.S.C. ? 1232 et seq. and FERPA places a dUty on MSU to not release education records except within certain specific. and narrow. constraints which cannot be met in this case. The Court has concluded. however. that the mandates of FERPA do not apply in this instance. FERPA defines "education records~ as those records. files. documents. and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or inst~ution. 20 U.S.C. ? 1232g(a)(4)(A). Courts in other jurisdictions addressing situations similar to the present case have determined that documents relating to investigations into conduct of employees of an educational institution. including teachers and professors. are not "education records" as defined by FERPA because the records are "directly related" to the employee and are only tangentially related to any involved student. See. e.g., National Collegiate Athletic Assoc. v. Associated Press, 18 So.3d 1201. 1210"11 (Fla. App. 2009); Briggs v. Board of Trustees Columbus State Community College. 2009 U.S. Dist. LEXIS 92950, 14-15 (S.D. Ohio 2009); City of Boston School Committee v. Boston Teachers Union, 2006 Mass. Super. LEXIS 634, 10- 12 (Mass. Super. Ct. 2006); Wallace v. Cranbrook Educational Community, 2006 U.S. Dist. LEXIS 71251, 10-12 (ED. Mich. 2006); Ellis v. Cleveland Municipal School Dist., 309 F. SUpp. 2d 1019, 1022-23 (ND. Ohio 2004). The Court similarly concludes here that the requested documents are directly related to the activities and behavior of Professor Komiyama and are only tangentially related to 3 --------- the students involved. As a result, FERPA does not apply here. MSU also argues that it is precluded from disseminating the requested documents because a proper application of Montana law establishes that the public's right to view the documents is outweighed by the privacy interests of the involved students and Professor Komiyama in the information contained therein. With regard to privacy interests, Article II, Section 10 of the Montana Constitution provides that "[tJhe right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. " On the other hand, the Montana Constitution also provides that the public has a right to examine public documents, although this right is not absolute. Article II, Section 9 of the Constitution provides that "[n]o person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." This constttutionally guaranteed public right to know, including the required balancing of individual privacy interests, is implemented via the statutes contained in Title 2, Chapter 6 of the Montana Code Annotated. Thus, under Montana law, there must be a balancing of these interests when determining whether dissemination of public documents is appropriate in any given circumstance. The Court has reviewed the documents which MSU has submitted as being responsive to the Chronicle's production requests and has weighed the competing interests of the public and the individual students involved 4 in the investigation. The Court has concluded that the various letters and e-mails produced are appropriate for dissemination to the Chronicle with only a few minor redactions to protect the privacy of several students. With regard to the Report of the investigation results, the Court is aware that the Chronicle already has received a redacted copy of a portion of the Report from a third party. It appears that, while the Report is 30 pages long, the Chronicle was given only the first 18 pages. The Court has reviewed the 18 pages, with the redactions as given to the Chronicle, and concludes the redactions were appropriate to protect the privacy interests of the students discussed therein. Therefore, the Court further concludes that the Chronicle shall receive nothing furtherfrom those 18 pages. After revieWing pages 19-30 of the Report, the Court concludes that it is appropriate to release those portions which contain the Findings of Fact, Discussion and Analysis, and "General Concerns" statements of the investigating committee, with minor redactions to protect the privacy of the involved students. The Court concludes, however, that the remaining sections of the Report relating to specific witness statements shall not be released as the privacy interests of the involved students outweighs the public's right to know regarding that information. Therefore, IT IS HEREBY ORDERED as follows: 1) MSU's Motion for Summary Judgment is DENIED. 2) The Chronicle's Cross Motion for Summary JUdgment is GRANTED in part, as discussed above. 5 3) Appended to this Order are copies of the documents to be released to the Chronicle. as redacted by the Court to protect the privacy interests of the various students involved. Dated this \S=c day of March. 2012. 6