DTH MEDIA CORPORATION; CAPITAL BROADCASTING COMPANY, INC.; THE CHARLOTTE OBSERVER PUBLISHING COMPANY; THE DURHAM HERALD COMPANY; Plaintiffs,
CAROL L. FOLT, in her official capacity as Chancellor of the University of North Carolina at Chapel Hill, and GAVIN YOUNG, in his official capacity as Senior Director of Public Records for the University of North Carolina at Chapel Hill, Defendants.
in the Court of Appeals 20 March 2018.
by plaintiffs from order entered 9 May 2017 by Judge Allen
Baddour in Wake County No. 16 CVS 14300 Superior Court.
Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens,
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Stephanie A. Brennan, for defendant-appellees.
Engstrom Law, PLLC, by Elliot Engstrom, for Student Press Law
Center, amicus curiae.
Court reviews the federal Family Educational Rights and
Privacy Act, 20 U.S.C. § 1232g (2017)
("FERPA"), and the North Carolina Public Records
Act, N.C. Gen. Stat. §§ 132-1 to -11 (2017) (the
"Public Records Act"), to determine whether
officials of The University of North Carolina at Chapel Hill
("UNC-CH") are required to release students'
disciplinary records, who have been found to have violated
UNC-CH's sexual assault policy. The following facts were
stipulated to by the parties and adopted by the trial court.
Media Corporation; Capitol Broadcasting Company, Inc.; The
Charlotte Observer Publishing Company; and, The Durham Herald
Company (collectively, "Plaintiffs"), are North
Carolina-based news organizations, which regularly cover
events at UNC-CH. The defendants are Carol L. Folt, the
Chancellor of UNC-CH, and Gavin Young, the Senior Director of
Public Records of UNC-CH (collectively,
"Defendants"), who are being sued in their official
sent a public records request to UNC-CH in a letter dated 30
September 2016, asking for "copies of all public records
made or received by [UNC-CH] in connection with a person
having been found responsible for rape, sexual assault or any
related or lesser included sexual misconduct by
[UNC-CH's] Honor Court, the Committee on Student Conduct,
or the Equal Opportunity and Compliance Office."
denied Plaintiffs' request on 28 October 2016 in a letter
signed by Joel G. Curran, UNC-CH's Vice-Chancellor for
Communications and Public Affairs. Vice-Chancellor Curran
concluded the records requested by Plaintiffs are
"educational records" as defined by FERPA and are
"protected from disclosure by FERPA."
denial of their request, Plaintiffs filed a complaint and
petitioned for an order to show cause against Defendants on
21 November 2016, under the Public Records Act, and the North
Carolina Declaratory Judgments Act, N.C. Gen. Stat.
§§ 1-253 to -267. Plaintiffs sought, in part: (1) a
preliminary order compelling Defendants to appear and produce
the records at issue; (2) an order declaring that the
requested records are public records as defined by N.C. Gen.
Stat. § 132-1; (3) an order compelling Defendants to
permit the inspection and copying of public records pursuant
to N.C. Gen. Stat. § 132-9(a).
December 2016, Defendants filed their answer to
Plaintiffs' complaint and petition. Following subsequent
communications between the parties, including a mediation
conducted pursuant to N.C. Gen. Stat. § 78-38.3E,
Plaintiffs narrowed the scope of their request to encompass
records in the custody of UNC-CH and limited to: "(a)
the name of any person who, since January 1, 2007, has been
found responsible for rape, sexual assault or any related or
lesser included sexual misconduct by the [UNC-CH] Honor
Court, the Committee on Student Conduct, or the Equal
Opportunity and Compliance Office; (b) the date and nature of
each violation for which each such person was found
responsible; and (c) the sanctions imposed on each such
person for each such violation." Defendants stipulated
that UNC-CH retains the records sought by Plaintiffs in their
narrowed request. The matter was heard in Wake County
Superior Court on 6 April 2017. On 9 May 2017, the trial
court entered an order and final judgment denying
Plaintiffs' request, as it related to students who had
been found responsible for serious sexual misconduct. The
court granted Plaintiffs' request for records related to
UNC-CH employees, who had been disciplined for such offenses.
trial court's order and final judgment concluded the
Public Records Act does not compel release of student records
where "otherwise specifically provided by law." The
trial court concluded FERPA "otherwise specifically
provides" and grants UNC-CH "discretion to
determine whether to release (1) the name of any student
found 'responsible' under [UNC-CH's] policy for a
'crime of violence' or 'nonforcible sex offense,
' (2) the violation, and (3) the sanction imposed."
Plaintiffs timely filed notice of appeal from the trial
court's order and final judgment.
complied with that portion of the trial court's order and
final judgment relating to records regarding UNC-CH's
employees, and both parties agree UNC-CH employees'
records addressed in the order and judgment are not at issue
lies in this court over appeal of a final judgment of the
superior court in a civil case. N.C. Gen. Stat. §
argue their public record's request for the disciplinary
information of UNC-CH students falls within an exemption to
FERPA's non-disclosure provisions and Defendants are
required to comply with their Public Records Act request.
Standard of Review
of statutory interpretation are questions of law, which are
reviewed de novo by an appellate court." In
re Proposed Assessments v. Jefferson-Pilot Life Ins.
Co., 161 N.C.App. 558, 559, 589 S.E.2d 179, 180 (2003)
(citation omitted). This appeal involves questions regarding
the interpretation of FERPA and the Public Records Act. We
review de novo.
North Carolina Public Records Act
Public Records Act is codified at N.C. Gen. Stat.
§§ 132-1 to -11 (2017). The public policy
underlying the Public Records Act is enunciated by the
General Assembly at N.C. Gen. Stat. § 132-1(b), which
provides, "The public records and public information
compiled by the agencies of North Carolina government or its
subdivisions are the property of the people. Therefore, it is
the policy of this State that the people may obtain copies of
their public records and public information free or at
Public Records Act "affords the public a broad right of
access to records in the possession of public agencies and
their officials." Times-News Publ'g Co. v. State
of N.C., 124 N.C.App. 175, 177, 476 S.E.2d 450, 451-52
(1996), disc. review denied, 345 N.C. 645, 483
S.E.2d 717 (1997). "[T]he purpose of the Public Records
Act is to grant liberal access to documents that meet the
general definition of 'public records[.]'"
Jackson v. Charlotte Mecklenburg Hosp. Auth., 238
N.C.App. 351, 352, 768 S.E.2d 23, 24 (2014).
Public Records Act defines "public records" to
include "all . . . material, regardless of physical form
or characteristics, made or received pursuant to law or
ordinance in connection with the transaction of public
business by any agency of North Carolina government or its
subdivisions." N.C. Gen. Stat. § 132-1(a).
Public Records Act permits public access to all public
records in an agency's possession "unless
either the agency or the record is specifically exempted from
the statute's mandate." Times-News, 124
N.C.App. at 177, 476 S.E.2d at 452 (emphasis supplied).
"Exceptions and exemptions to the Public Records Act
must be construed narrowly." Carter-Hubbard
Publ'g Co., Inc. v. WRMC Hosp. Operating Corp., 178
N.C.App. 621, 624, 633 S.E.2d 682, 684 (2006) (citation
omitted), aff'd, 361 N.C. 233, 641 S.E.2d 301
the trial court correctly determined that the UNC-CH student
disciplinary records requested by Plaintiffs are "public
records" as defined by the Public Records Act at N.C.
Gen. Stat. § 132-1(b). Neither party contests the trial
court's determination and conclusion that the records at
issue are "public records" under the Public Records
Act. Also, neither party disputes that UNC-CH is a public
agency of North Carolina and is subject to the Public Records
Act. See N.C. Gen. Stat. § 132-1(b).
Family Educational Rights and Privacy Act
Congress of the United States enacted FERPA in 1974
"under its spending power to condition the receipt of
federal funds on certain requirements relating to the access
and disclosure of student educational records."
Gonzaga Univ. v. Doe, 536 U.S. 273, 278, 153 L.Ed.2d
309, 318 (2002). "The Act directs the Secretary of
Education to withhold federal funds from any public or
private 'educational agency or institution' that
fails to comply with these conditions." Id.
FERPA provides, in part, that:
No funds shall be made available under any applicable program
to any educational agency or institution which has a policy
or practice of permitting the release of education records
(or personally identifiable information contained therein . .
.) of students without the written ...