FERPA, Defensible Deletion, and Newsaliens with Opinions

So! I meant to write a post about the shenanigans at University of Oregon. That moment passed because of procrastination. (Though you can read this post from Librarian Shipwreck that I wish I had written about it.)

THEN, I was going to write a post about Hillary Clinton’s email and the massive failure of records management happening there. Again, unfortunately, procrastination got the better of me. Besides, do we really need ANOTHER Hot Take on HRC’s email? (Though the tl;dr version of what I would have written there: STOP DOING THIS POLITICIANS, USE THE EMAIL SERVER WITH WHICH YOU ARE PROVIDED.)

Luckily, the New Republic helped me out with this piece on Yale deleting its admission records, so I DO have something topical to talk about after all! Lucky you (H/T Sam Winn):

You just got lawyered.

That was the takeaway from Yale Law School Dean Robert Post’s annual “State of the School” address last Tuesday. In frank terms, he explained that students who requested access to their educational records under the Family Education Rights and Privacy Act (FERPA) would no longer be receiving the fat file they expected. To avoid being forced to hand over a wide range of documents in response to a flood of recent student requests, the school had decided to destroy its student admissions evaluation records along with any notations made by the career development office in individual student files.

OK, perhaps my initial tweet response was unfair. As a records manager, I have lots of questions about this story. Foremost of which is, “what was Yale’s retention policy for these records to begin with?” Yale, as a private institution, doesn’t have a statutory requirement for records management the way my own institution does, but it is of course good practice, and I happen to know that Yale does have a records management program . That said, Red Flag Number One is that the actual retention schedule is managed by Yale’s Office of General Counsel rather than the Record Services program. (No guesses on how findable it is from the General Counsel website…) Red Flag Number Two is that the entire schedule appears to date from 2010 with no apparent updates since then. Number Three is that there IS no schedule for admissions records that I can see.

[ETA 3/17: A little more context from RECMGMT-L from Stephen Cohen, as noted in the comments: 

Actually, I am the author of the retention policy in question. Around 2000, I worked as part of a team with General Counsel to develop and approve the schedules for the university. I just checked the mssa site but the retention policies page won't load. My recollection was that student records are retained permanently. Admissions records, for those individuals who become students at Yale, are the start of the student record. Admissions files for individuals who end up not enrolling are retained for a short period, can't remember how long exactly, and are then destroyed. The admissions files are in a separate schedule.

When at Yale, I worked closely with the Law School registrar to take custody of their paper student files, which filled their sub-basement. At the time, they were in the process of changing to an all-electronic recordkeeping system. Their physical files, like those from the other registrars were more of a subject file. They contained everything on the student, and much of which should not have been there in the first place. Due to old filing habits and convenience (of bundling all of a student's documentation into a single folder used not just by the registrar, but other administrators too), the intermingling of mixed content continued after the advent of FERPA.

When I left Yale in 2005, the management of the Records Program remained unstaffed for a while and since has been withering away. At least this is the gist I get when I speak with colleagues from that time. It's quite possible that the GC picked up the slack. During my tenure, the program gained popularity due to its usefulness, but was a bit of a backdoor operation since the Library was not too keen on managing non-research materials. I was accessioning in excess of 2500 cubic feet of non-permanent paper files and we were in the testing phase of managing ESI using LiveLink, which cut into the resources for the research and archival materials (from the Library's perspective). My guess is that the GC took over the records program.

]

So this is obviously very bad. Admissions records, my protestations about ongoing admin value notwithstanding, are a record series that is important to keep for a number of short-term statutory and administrative reasons, regardless of whether you have been admitted to the school or not. Not having a retention policy for these records and deciding unilaterally to shred them is probably not against the law, as it would be at many public institutions, but it IS very bad form. Having a retention policy for these records and ignoring it– or changing it at a moment’s notice in response to inquiries– is worse, because you are making a mockery of any records management policies you DO have in place. This is why Sarbanes-Oxley is a thing, folks. (Yes, I realize it doesn’t apply in this case. It’s a rhetorical device. Work with me here.)

But. (You knew there was a but.) I am annoyed at Yale Law for this, but I am also annoyed at this article for making me work for it. Note that I have given you links in this post for the Yale Records Services program and Records Retention schedule; both of those were Googled by yours truly (and I have no idea if additional record schedules have been added since 2010). Without that context, I have no sense of where Yale has gone wrong on this issue, and I make knee-jerk responses like the one quoted above. This is perhaps something that only a records manager cares about, but context *is* important.

From there, the article takes a bit of a left turn:

Unfortunately, nothing in the language of the statute bars the administration’s conduct. Indeed, as a general matter, FERPA is problematic not because of what the statute says but because of what it doesn’t say.

[…]

Just as problematically, the statute contains no guidelines for document retention or destruction. The absence of such parameters undermines the statute’s privacy and fairness objectives, creating problems both for enrolled students who seek to ensure the accuracy of records that could affect their professional opportunities and for students who seek to exert some control over their records long after graduation.

 

 

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Morbo is right. FERPA, as is suggested by the word “Privacy” in the statute acronym, is intended to protect the right of students to view their own educational records and to set limitations on who else gets to see them. I am not quite clear on the extent to which retention has an impact on privacy, except to encourage institutions to get rid of records *earlier* (as I tell trainees, you can’t have a data breach of records that aren’t there). To be sure, this is part of records management and I give talks on FERPA’s RM implications on a regular basis. But I do not follow the conclusion reached by the last sentence above. Should Yale set a retention period for these records as suggested by a professional group such as AACRAO (American Association of College Registrars and Admission Officers)? Absolutely. Is FERPA the right vehicle to mandate this? Probably not. The law is already complex and opaque enough to be used and misused regularly by universities that want to limit access to information or supersede other legal limits on use (Oh look, Oregon gets a mention after all!); does it really need a retention rider added? If you do use FERPA to set retention rules, how do you determine a rule that works for most institutions? Do you set different retention requirements for public and private universities?  What are the consequences (if any) of deleting records earlier or later, particularly if you have already been admitted, or if statutes of limitation on suing for wrongful non-admission have passed?

I dunno. Yale Law’s decision to dump these records is not actually *good*, but I am unconvinced that adding a retention rider to FERPA is the way to fix it. As noted above, FERPA does have a lot of problems, but I sort of feel like the higher education landscape is varied enough that adding retention to its portfolio would only add to them. (Plus FERPRA is a much uglier acronym.) I’ll let myself have the last word here:

https://twitter.com/herodotusjr/status/577439403515244544

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2 thoughts on “FERPA, Defensible Deletion, and Newsaliens with Opinions

  1. pak152

    ” the statute contains no guidelines for document retention or destruction. ”
    and rare it is that a statute contains information about retention or destruction. that would be found in the regulations or if a regulation doesn’t contain retention requirements one can use the 3 yr assumption.

    Reply
  2. pak152

    Stephen Cohen posted on recmgmt-l;
    “Actually, I am the author of the retention policy in question. Around 2000, I worked as part of a team with General Counsel to develop and approve the schedules for the university. I just checked the mssa site but the retention policies page won’t load. My recollection was that student records are retained permanently. Admissions records, for those individuals who become students at Yale, are the start of the student record. Admissions files for individuals who end up not enrolling are retained for a short period, can’t remember how long exactly, and are then destroyed. The admissions files are in a separate schedule.”
    http://lists.ufl.edu/cgi-bin/wa?A2=ind1503C&L=RECMGMT-L&D=1&T=0&O=D&P=34006

    Reply

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