DOCUMENTS GIVEN TO A SCHOOL MAY BECOME PUBLIC RECORDS

Tim Burke, Manley Burke, tburke@manleyburke.com

At many universities, certain records are shared between the university and fraternities and sororities.  Universities may provide certain student names and contact information to aide in student recruitment.  At times, universities may provide information regarding student grades.  Fraternities are frequently called upon to share with the university certain documentation such as the governing documents of chapters and, on occasion, are known to request information regarding member disciplinary matters.  Many times the sharing of information can be beneficial.

While both the university and Greek organizations involved need to be concerned about privacy issues associated with information sharing, this article focuses on a different issue – public records.  Recent years have seen a groundswell of strong state public records legislation, frequently in response to pressure from journalists seeking to promote government transparency and the public’s right to know.  Virtually every state now has freedom of information or public record laws which require public institutions to make most records and documents in the possession of public institutions available to anyone who asks for them.  These laws vary from state to state, but generally apply to any public institution.  It is of particular relevance here that those laws apply to public colleges and universities.

While the reach of the public records laws vary, generally records in the files of public institutions are readily available to the public unless they fall under a specific exception to the law.  Typical exceptions include such things as security arrangements, trade secrets, medical records, adoption records and other private information.  But it is unlikely that such exceptions would prevent the public disclosure of chapter or international governing documents filed with a public university.  Lists of students provided during fraternity recruitment activities, even those kept only on computer records, are equally unlikely to be protected by any exception to a state public records law.  Most such laws define public records to include any records, no matter what medium they are kept in, whether on hard paper copies or in a computer memory.

Likewise, a public university may, depending on the specific state law, have an obligation to share, upon demand, certain student records, including name and contact information, whether its administration want to or not.  If the school publishes a student directory, school officials would be hard pressed to prove that the information contained therein was exempt from a public record request.

Even if an administrator at a public university had advised that such records were not going to be available to the public, it is unlikely that such an understanding could be enforced against a challenge for their disclosure.  Many public records laws provide for someone seeking public records who is denied them to have the ability to go to court and obtain a court order requiring the disclosure of those records.  Frequently, too, they are entitled to recover their attorneys fees.

Such laws would not normally impact on the internal records of a fraternity or sorority chapter or national office.  But if copies of those records have been provided to a public institution, they are likely to be publicly available if someone knows enough to ask for them.

In order to protect the privacy of internal records, it is important when those records are sought by a public university to have a frank discussion about the impact of the local public records law on the ability of some unintended individual to obtain copies of those records.  It may be appropriate that such a discussion take place between legal counsel for the chapter and the university.