Kestenbaum v. Michigan State University

• Decision Date: 22 April 1980
• Docket Number: Docket No. 43048
• Citation: 97 Mich.App. 5,294 N.W.2d 228
• Parties: Lawrence KESTENBAUM, Plaintiff-Appellant, Cross-Appellee, v. MICHIGAN STATE UNIVERSITY and Dale Arnold, Defendants-Appellees, Cross-Appellants. 97 Mich.App. 5, 294 N.W.2d 228
• Court: Court of Appeal of Michigan — District of US

Page 228

294 N.W.2d 228

Lawrence KESTENBAUM, Plaintiff-Appellant, Cross-Appellee, v. MICHIGAN STATE UNIVERSITY and Dale Arnold Defendants-Appellees, Cross-Appellants.

Docket No. 43048.

97 Mich.App. 5, 294 N.W.2d 228

Court of Appeals of Michigan.

April 22, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 9] Richard W. Kinkade, Lansing, for plaintiff-appellant, cross-appellee.

Byron H. Higgins, E. Lansing, for defendants-appellees, cross-appellants.

Before R. B. BURNS, P. J., and HOLBROOK and GLENNIE, JJ.

GLENNIE, Judge.

This case is before the Court on [97 MICHAPP 10] appeal by plaintiff upon denial of attorney fees and costs. Defendant Michigan State University cross appeals on the issues of whether information on students' names and addresses is exempt from disclosure under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C.A. § 1232g, and whether the Michigan Freedom of Information Act (FOIA), M.C.L. § 15.231, et seq.; M.S.A. § 4.1801(1) et seq., requires a public body to give to private persons, at a nominal cost, items of proprietary interest owned by the public.

The history of this case began when plaintiff filed a complaint on October 6, 1978, in Ingham County Circuit Court, alleging that the defendants had violated the Michigan Freedom of Information Act, M.C.L. § 15.231 et seq.; M.S.A. § 4.1801(1) et seq., by refusing to give the plaintiff a copy of a computer tape containing student information. Defendants answered that they would provide plaintiff with a computer print-out of the information contained on the tape, if the information was not exempt from the FOIA under § 13(1)(e).

On October 18, 1978, the trial court ordered defendants to create a duplicate magnetic tape containing the students' names and addresses and to give the tape to the plaintiff until the conclusion of the November 1978, election, at which time the tape was to be returned to defendants. Plaintiff was ordered to pay reasonable costs for duplication. The trial court denied attorney fees, costs, disbursements or damages for the reason that the defendants' denial of the request for the tape was not arbitrary or capricious and that the matter presented involved a valid question of first impression which could have a significant effect on the rights of third persons.

The FOIA explicitly outlines the conditions under[97 MICHAPP 11] which attorney fees and costs shall be awarded to the plaintiff.

M.C.L. § 15.240; M.S.A. § 4.1801(10) reads, in part:

"(4) If a person asserting the right to inspect or to receive a copy of a public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys' fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5).

"(5) In an action commenced pursuant to this section, if the circuit court finds that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but rather be assessed against the next succeeding public body, not an individual, pursuant to whose function the public record was kept or maintained.

Plaintiff contends that, since he prevailed in the action, § 10(4) required that the court order the defendants to pay attorney fees and costs. Originally, plaintiff requested a copy of the complete tape. The trial court ordered defendants to produce a copy of the names and addresses only and restricted its use to some extent. Under such circumstances, the trial court concluded that the plaintiff had only prevailed in part.

In cases of partial success, § 10(4) allows for the award of attorney fees and costs in the trial court's discretion.

It is our opinion that the trial court did not abuse its discretion. We concur with the trial [97 MICHAPP 12] court's decision denying attorney fees, costs, compensatory and punitive damages.

In defendants' cross-appeal, we are asked to decide a question of first impression concerning the Family Educational Rights and Privacy Act (20 U.S.C.A. § 1232g), specifically; whether that Act prohibits the University from releasing confidential information about 44,000 students to the general public in a format and for uses not expressly consented to by those students.

Michigan State University is a constitutional body corporate, established pursuant to Const.1963, art. 8, § 5. The University is charged with the responsibility of providing educational opportunities to the persons currently enrolled.

Plaintiff is a private individual who requested a copy of a University computer tape and the file layout of that computer tape. The tape contained the names, addresses, phone numbers, and other items of information with respect to students enrolled at Michigan State University.

Michigan State University annually prints a student directory which contains the names, local and permanent addresses, local phone numbers, year, major and numerous other items of student information. A computer tape is developed by the University in order to assist the printer in the mechanical printing process.

The trial court ruled that the students' constitutional right to privacy would not be violated if only their names and addresses were released. The court further ruled that the FOIA required that the University duplicate and deliver to plaintiff a copy of the computer tape, rather than a computer print-out.

This issue requires interpretation of the Family Educational Rights and Privacy Act of 1974 (20 [97 MICHAPP 13] U.S.C.A. § 1232g), and the regulations published pursuant thereto. Plaintiff contends that any document "prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function * * *" is a public record. M.C.L. § 15.232(c); M.S.A. § 4.1801(2)(c). Plaintiff further claims he is entitled to the computer tape under the FOIA, M.C.L. § 15.233(1); M.S.A. § 4.1801(3):

"Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by Section 13."

Michigan State University, because it is a recipient of Federal funds, falls within the purview of the Family Educational Rights and Privacy Act (Buckley Amendment; PL 90-247, Title IV, § 438 as amended; 20 U.S.C.A. § 1232g, 45 CFR 99.1, et seq.).

The latter statute serves two functions. First, it provides access to student records by students and their parents. Second, it establishes the privacy of those records. The information contained in the records is classified as being educational, personally identifiable or directory information. 45 CFR 99.3 defines each type of record. The names and addresses requested by the plaintiff fall into two of these classifications: personally identifiable information and directory information.

Pursuant to 45 CFR 99.30, educational institutions are required to follow an explicit procedure before releasing any personally identifiable student information:

"(a)(1) An educational agency or institution shall obtain the written consent of the parent of a student or [97 MICHAPP 14] the eligible student before disclosing personally identifiable information from the education records of a student, other than directory information, except as provided in § 99.31.

"(2) Consent is not required under this section where the disclosure is up to (i) the parent of a student who is not an eligible student, or (ii) the student himself or herself.

"(b) Whenever written consent is required, an educational agency or institution may presume that the parent of the student or the eligible student giving consent has the authority to do so unless the agency or institution has been provided with evidence that there is a legally binding instrument, or a State law or court order governing such matters as divorce, separation, or custody, which provides to the contrary.

"(c) The written consent required by paragraph (a) of this section must be signed and dated by the parent of the student or the eligible student giving the consent and shall include:

"(1) A specification of the records to be disclosed.

"(2) The purpose or purposes of the disclosure, and

"(3) The party or class of parties to whom the disclosure may be made.

"(d) When a disclosure is made pursuant to paragraph (a) of this section, the educational agency or institution shall, upon request, provide a copy of the record which is disclosed to the parent of the student or the eligible student, and to the student who is not an eligible student if so requested by the student's parents."

45 CFR 99.30 thus requires that the University secure from the parent, or student over 18 years of age, a written, dated, signed document which specifies the disclosable data, the purpose of the disclosure, and the parties to whom the disclosure may be made. Michigan State University did not follow the procedure with respect to the personally identifiable information sought by the plaintiff.

The plaintiff asserts, however, that the University[97 MICHAPP 15] complied with another section of the statute, given that the names and addresses also constitute directory information and that the regulation describing the procedure for release of directory information was followed.

45 CFR 99.37 outlines the procedure to be followed by educational institutions prior to releasing directory...