The Goldwater Institute, an Arizona-based watchdog organization, is demanding to know what the University of Arizona is hiding about a reporting apparatus, which they say encourages students to snitch on their peers for politically incorrect or “biased” speech.
The demand follows an effort by a reporter with The College Fix, who was rebuffed by University officials when he formally requested copies of the complaints generated under the bias response system (BRS).
According to Goldwater, Christian Schneider, a senior reporter with The College Fix, submitted a Public Records Request to University of Arizona last August. Schneider’s similar request made in 2019 was granted, but the latest request was denied by University officials “to protect the privacy of persons and best interests of the state.”
The request was denied despite the fact that Schneider asked for the names of the complainants and the targets of the reports to be redacted.
In the Goldwater Institute’s letter date July 20, Jon Riches, Director of National Litigation, advised Kim Fassl in the University’s Office of Public Records: “Based on the initial denial of Mr. Schneider’s request, and the purported basis for that denial, we will treat delay in responding to this letter as a denial of Mr. Schneider’s right to access public records and will pursue our right to inspect these records in a special action filed in superior court pursuant to A.R.S. § 39-121.02.”
Should Goldwater be forced to sue and win, it will seek award of attorney fees and costs as provided through A.R.S. § 39-121.02.
As noted in a blog post by Kamron Kompani, Legal Programs Manager at the Goldwater Institute, “The College Fix regularly investigates bias response teams around the country to shine a light on what sorts of incidents are being reported and whether bias response systems are infringing on free speech rights. In one instance that Schneider reported on, a Michigan State student filed a complaint after witnessing his roommate watch a Ben Shapiro video on his laptop, which prompted an administrator to allow for a room change. In another, a Portland State University student was reported for making an off-hand comment about sometimes feeling like she’s “schizophrenic.” Trivial complaints such as these only serve to chill speech and foment distrust among the campus community.”
Kompani reports the Institute is working “to dismantle the campus thought police with a complementary new model policy, developed in partnership with Speech First, that puts a stop to the corrosive new practice of bias response teams by prohibiting public universities and community colleges from operating any such system that works to chill student speech. In tandem with the Campus Free Speech Act, the new “Protecting Students from Bias Reporting Systems” policy requires universities to uphold constitutional principles and help foster intellectual diversity on campus.”
University of Arizona
Office of Public Records
Attn. Kim Fassl
P.O. Box 210066
Tucson, AZ 85721-0066
Subj: Public Records Request—Public Incident Reports
SENT VIA E-MAIL & U.S. MAIL
Dear Ms. Fassl:
The Goldwater Institute represents Christian Schneider, a senior reporter with The College Fix, who on August 9, 2021, submitted a public records request to your office seeking copies of complaints submitted on the University’s Public Incident Report webpage from January 1, 2019 to July 31, 2021. Ex. 1. Mr. Schneider specified in his request that the names of students or other individuals may be redacted to preserve individual privacy.
Your office denied Mr. Schneider’s request, claiming that these reports are barred from disclosure under the Family Educational Rights and Privacy Act (“FERPA”), and that they are also being withheld to protect the privacy of persons and the best interests of the state. Ex. 2. These are insufficient bases for withholding the requested reports, and we are writing to reiterate that the records must be provided under Arizona law.
Arizona law presumes strongly in favor of the disclosure of public records. “[I]f a document falls within the scope of the public records statute, then the presumption favoring disclosure applies.” Griffis v. Pinal Cnty., 215 Ariz. 1, 5 ¶ 13 (2007). The public’s right to inspect public records may only be curtailed if one of three narrow exceptions apply: (1) the records are made confidential by statute, (2) the records include privacy information, or (3) if disclosure of the records would harm the best interests of the state. See Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 300 ¶ 9 (1998).
If a public body believes an exception applies, the burden is squarely on the public body to establish that exception. See Mitchell v. Superior Court, 142 Ariz. 332, 335 (1984) (the burden of demonstrating that some harm will result to the state in disclosure “is on the party that seeks non-disclosure rather than on the party that seeks access”); Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14 (1993) (same).
Regarding your contention that FERPA prevents disclosure of these requested records, courts have made clear that once identifying information has been redacted, the document ceases to be an “education record” for the purposes of FERPA, and must be produced if it is otherwise subject to the state’s open-records law, and “[n]othing in the FERPA would prevent the Universities from releasing properly redacted records.” Bd. of Trs. v. Cut Bank Pioneer Press, 160 P.3d 482, 487 ¶ 29 (Mont. 2007) U.S. v. Miami Univ., 294 F.3d 797, 824 (6th Cir. 2002).
Further, Arizona courts have said that where there is a competing interest of confidentiality or privacy, deleting personal identifying information is a practical alternative to denying access, and a “[g]ood reason to deny access to part of a record is not necessarily good reason to deny access to all of it.” KPNX-TV v. Superior Court, 183 Ariz. 589, 594 (Ariz. Ct. App 1995).
Again, Mr. Schneider specifically asked that identifying information be redacted from the documents he requested. Thus, the University’s refusal to provide the documents even after removing this information is not legally tenable.
Moreover, the University provided responsive records to a nearly identical request in 2019. Ex. 3, 4. At that time, the University did not withhold records on the basis of FERPA, or by claiming that privacy interests or the best interest of the state outweighed the public’s right to access public information, or otherwise required withholding the documents despite redacting personal identifying information.
Therefore, we believe the University’s refusal to comply with Mr. Schneider’s public records request violates Arizona law. Please accept this letter as a renewed request for the records identified in Mr. Schneider’s August 9, 2021, request, pursuant to A.R.S. § 39-121 et seq.
If you believe these records may be withheld under any actual exception to the public records laws, please state the exception, your reasoning as to why it applies, and any other basis for withholding public information. Specifically, pursuant to A.R.S. § 39-121.01(D)(2), please provide “an index of records … that have been withheld and the reasons the records … have been withheld from the requesting person.”
Please also advise the earliest date on which you anticipate releasing the records requested or providing a response.
Based on the initial denial of Mr. Schneider’s request, and the purported basis for that denial, we will treat delay in responding to this letter as a denial of Mr. Schneider’s right to access public records and will pursue our right to inspect these records in a special action filed in superior court pursuant to A.R.S. § 39-121.02.
Please note that public records statute calls for the award of attorney fees and costs if the party seeking records prevails.
I look forward to working with you to quickly resolve this matter. Should you have any questions in the meantime, please do not hesitate to contact me.
Director of National Litigation
Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute