Requests for Records: The Office of the Registrar Subpoenas Records Requests Open Records Request By University Counsel April 12, 2016, Registrar Staff Meeting

SUBPOENAS You’ve been served

SUBPOENAS: What? Who? When? Why? What is it? Legal document that commands a person or entity to testify in court at a certain time and/or produce certain documents. Who needs to respond? The person named on the subpoena When to respond? By the date and time specified on the subpoena. Why do we need to respond? To avoid contempt of court.

SUBPOENAS: How to respond initially Although it is the individual named on the subpoena’s personal responsibility, WE ARE HERE TO HELP! When you receive a subpoena: Call our office and let us know: These can be time sensitive Scan and send a copy of the subpoena to our office Be ready to collect records or testify in court Prepare FERPA notice to any students whose records might be at issue

SUBPOENAS: What will our office do? Determine whether the subpoena was lawfully issued Call and negotiate with the attorney, court, or agency that issued subpoena to clarify what is needed Provide records instead of testimony in court? Witness fees? Enough time to notify the student? Contact you to let you know what has been requested Counsel you on the court process

SUBPEONAS: Compliance Issues FERPA Provide reasonable notice to the students (7-10 days) – don’t need consent (34 C.F.R. 99.31 (9)(ii)) Exceptions to providing notice Order not to disclose– protecting law enforcement process or grand jury process (99.31(9)(ii)(A)-(B)) If University initiates legal action against student/parent – can disclose student records to court without notice (99.31(9)(iii)(A)) Requirement to comply with Subpoena and produce records! Remember, we must comply or face contempt of court

RECORDS REQUESTS: FERPA Request from student or student’s attorney for student information Have to provide students the opportunity to inspect and review the records Don’t have to make copies- unless “circumstances effectively prevent” student from viewing them Most provide within 45 days (34 C.F.R. 99.10(b)) Usually require a release of information with signature and date from the student

RECORDS REQUESTS: What must be provided? Education record Respond to general requests with general information held by the registrar’s office Respond to specific requests by routing the request around to the different offices who might have responsive records Must respond to reasonable requests for explanation and interpretation of record

RECORDS REQUESTS: What cannot be provided? Financial records of parents 34 C.F.R. 99.12(b)(1) Confidential letters and statements of recommendation if student has waived right to review and those statements relate to employment/admission/honors. 34 C.F.R. (3)(i)-(ii). Records containing PII of other students

RECORDS REQUESTS: what does not need to be provided but may be FPCO guidance states that access to “academic calendars, course syllabi, or general notices such as announcements of specific events or extra-curricular activities” does not need to be provided as it doesn’t relate to an individual student and thus is not an education record Do not need to provide information that is not typically maintained or has not been created

RECORDS REQUESTS SUBPOENAS 2) Send to University Counsel for advice 1) Quick turn around time 2) Send to University Counsel for advice 3) Individual compliance obligation 4) Probably have to provide copies of requested record (or testimony about records) 5) Can release PII without student consent RECORDS REQUESTS 1) 45 days to respond 2) Do not need to send to University Counsel (unless you have questions) 3) University-wide compliance obligation 4) Don’t have to provide copies 5) Cannot release PII without consent Provide student education records Response required by law

CORA: The Basics of the Colorado Open Records Act Presumption: all records made, maintained, or kept by CU are public, unless: An exception applies (e.g. personnel files, letters of reference, contrary to Federal law [FERPA], specific details of bona fide research projects, proprietary information); or The record is not public by definition (e.g. records that identify a donor)

CORA: Timeframes Must provide responsive records within 3 days; unless: There are “extenuating circumstances,” which can extend the timeline an add’l 7 days Note: the timeline is extended while the parties negotiate the terms of the request (e.g. email search terms)

CORA: what to do when you receive a request Do not delete anything! Wait to hear from Scott or University Counsel before gathering material After go-ahead from Scott or OUC, gather records and provide to Scott or University Counsel for review Track time spent on request

CORA: How does it relates to the Registrar? The custodian of records will not allow anyone to inspect records if “such inspection would be contrary to any federal statute or regulation.” C.R.S 24-72-204(1)(b). This means that if someone is requesting a record with student’s PII we will redact the identifying information

Will only release if student signs a form consenting to the release CORA Request will come from Custodian of records FERPA protected information will be withheld (unless student at issue makes request) RECORDS REQUESTS Will only release if student signs a form consenting to the release Do not need to consult with legal prior to responding (unless you have a question!) SUBPOENAS Will release information even without student consent Will not release PII unless student makes the request or provides release Short turn around time period Requires help by legal Not a record retention statute

UNDEFINED REQUESTS What do I do if an IRS agent knocks on the door and asks to see proof that a certain student attended CU? What should I do if a parent that has power of attorney asks for access to their student’s records? A professor contacts your office to ask to see a student’s transcript. The professor wants to give the student a failing grade unless the student is about to fail out of school. What should you do?

QUESTIONS ???

Contact information Alex Loyd, Assistant University Counsel 303-735-3010 or alex.loyd@cu.edu Julie Steeler, Research Counsel 303-492-2413 or julie.steeler@cu.edu Main Office 303-492-7481