Krakauer v. Comm. of Higher Ed. , 2016 MT 230 ( 2016 )


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  •                                                                                             09/19/2016
    
    
                                           DA 15-0502
                                                                                            Case Number: DA 15-0502
    
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           
    2016 MT 230
    
    
    
    JON KRAKAUER,
    
              Petitioner and Appellee,
    
        v.
    
    STATE OF MONTANA, by and through its
    COMMISSIONER OF HIGHER EDUCATION, Clayton T. Christian,
    
              Respondent and Appellant.
    
    
    APPEAL FROM:      District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. CDV-2014-117
                      Honorable Kathy Seeley, Presiding Judge
    
    COUNSEL OF RECORD:
    
               For Appellant:
    
                      Vivian V. Hammill (argued), Jessica M. Brubaker, Special Assistant
                      Attorneys General, Helena, Montana
    
               For Appellee:
    
                      Peter Michael Meloy (argued), Meloy Law Firm, Helena, Montana
    
               For Amici Student Press Law Center, et al.:
    
                      David K. W. Wilson, Jr., Morrison, Sherwood, Wilson & Deola, PLLP,
                      Helena, Montana
    
               For Amicus United States:
    
                      Phillip H. Rosenfelt, Deborah Friendly, Rahul Reddy, U.S. Department of
                      Education, Washington, DC
    
                      Joyce R. Branda, Alisa B. Klein, Tara S. Morrissey, U.S. Department of
                      Justice, Washington, DC
    
                      Michael Cotter, Victoria Francis, U.S. Attorney’s Office, Billings,
                      Montana
                                                Argued: April 27, 2016
                                              Submitted: May 18, 2016
                                               Decided: September 19, 2016
    
    
    Filed:
    
             __________________________________________
                               Clerk
    
    
    
    
                                 2
    Justice Jim Rice delivered the Opinion of the Court.
    
    ¶1    The Commissioner of Higher Education, Clayton Christian (Commissioner),
    
    challenges the summary judgment order entered by the First Judicial District Court,
    
    Lewis and Clark County, in favor of Petitioner Jon Krakauer (Krakauer), which ordered
    
    the release/inspection of certain student disciplinary records. We affirm in part, reverse
    
    in part, and remand for further proceedings. The Commissioner raises several issues,
    
    which we restate as follows:
    
          1. Does Krakauer, a Colorado resident, have standing to avail himself of the right
          to know granted under Article II, Section 9 of the Montana Constitution?
    
          2. Is the release of records responsive to Krakauer’s request prohibited by the
          Family Educational Rights and Privacy Act of 1974 (FERPA), as amended, and/or
          by § 20-25-515, MCA?
    
          3. How does Article II, Section 9 of the Montana Constitution apply to the request
          for release of the subject student records?
    
          4. Did the District Court abuse its discretion when it awarded attorney fees and
          costs to Krakauer?
    
    Because we remand for further proceedings, we do not address the merits of the attorney
    
    fee issue.   We vacate the fee award so that the matter may be reconsidered upon
    
    conclusion of the proceeding.
    
                     PROCEDURAL AND FACTUAL BACKGROUND
    
    ¶2    This is a dispute over release of student records related to allegations of sexual
    
    assault occurring near the Missoula campus of the University of Montana (University).
    
    The underlying allegations of the case were part of a broader campus cultural concern
    
    that garnered local and national media attention. Krakauer, a journalist and resident of
    
                                                3
    Colorado, conducted an investigation and published a book chronicling instances of
    
    alleged sexual misconduct on or near the University campus. This case involves one of
    
    those instances. When Krakauer’s request for release of certain student records related to
    
    the matter was denied by the Commissioner, Krakauer initiated this action by filing a
    
    petition in the First Judicial District Court.
    
    ¶3      In support of his petition, Krakauer submitted documents that the United States
    
    District Court for the District of Montana had previously unsealed and released. Doe v.
    
    Univ. of Mont., No. CV 12-77-M-DLC, 
    2012 U.S. Dist. LEXIS 88519
     (D. Mont. June 26,
    
    2012), available at https://perma.cc/3RRE-ETXB.1 There, a student (Doe) initiated the
    
    action under seal, seeking a preliminary injunction halting the University’s disciplinary
    
    proceedings against him. The documents, now part of the record here, indicate that after
    
    a female student made an allegation that Doe had raped her in an off-campus apartment,
    
    the University initiated an investigation into a possible violation of the Student Conduct
    
    Code.     Dean of Students Charles Couture determined that Doe committed sexual
    
    intercourse without consent, and as sanctions, recommended Doe’s immediate expulsion
    
    from the University and restriction from all University property and University-sponsored
    
    events.    Doe, represented by counsel, appealed the Dean’s determination to the
    
    University Court, a body made up of faculty, staff, and students appointed to hear
    
    disciplinary matters.
    
    
    
    1
      The United States District Court ordered that the documents, including the letters and findings
    of the Dean, the University Court, and University President Royce Engstrom, would have
    students’ names, personal information, and pertinent dates redacted.
                                                    4
    ¶4     The University Court conducted a hearing and concluded by a 5-2 vote that Doe
    
    had committed sexual intercourse without consent, and further concluded by a unanimous
    
    vote of 7-0 that he should be sanctioned by expulsion from the University. Pursuant to
    
    the Student Conduct Code, Doe requested that the University Court’s determination be
    
    reviewed by President Engstrom. President Engstrom’s review considered whether the
    
    evidence provided a reasonable basis for the findings and disciplinary sanction, and
    
    whether procedural errors were so substantial as to deny a fair hearing to either party.
    
    President Engstrom upheld the University Court’s findings and proposed sanction, and
    
    found no procedural error that denied a fair hearing.
    
    ¶5     As the final step in the disciplinary appeal process, Doe appealed President
    
    Engstrom’s decision to the Commissioner, whose office acknowledged receipt of the
    
    appeal. This is the last step in the process documented in the records released by the U.S.
    
    District Court in Doe. Nothing more is documented there or in the record here about the
    
    Commissioner’s subsequent actions in the case.
    
    ¶6     Krakauer filed a request with the Commissioner’s office on January 17, 2014,
    
    naming a particular student and asking for “the opportunity to inspect or obtain copies of
    
    public records that concern the actions of the Office of the Commissioner of Higher
    
    Education in July and August 2012 regarding the ruling by the University Court of the
    
    University of Montana in which student . . . was found guilty of rape and was ordered
    
    expelled from the University.” Krakauer asserted factual connections between the federal
    
    Doe case and a highly-publicized state criminal proceeding that had been initiated against
    
    the then-starting quarterback of the University’s football team. He maintained that the
                                                 5
    student Doe and the quarterback were the same person, and his request to the
    
    Commissioner named the student specifically.            Krakauer postulated that the
    
    Commissioner must have overturned the University Court’s and President Engstrom’s
    
    decision and sanction of expulsion, noting that the student had “remained in school and
    
    continued to participate as the Grizzly quarterback.”
    
    ¶7     The Commissioner refused to acknowledge that such records existed, and further
    
    refused to permit inspection or release of any such documents, asserting that federal and
    
    state law prevent him from doing so. Krakauer initiated this action on February 12, 2014,
    
    citing the right to know under the Montana Constitution.        Upon cross-motions for
    
    summary judgment, and after holding a hearing, the District Court granted summary
    
    judgment to Krakauer, and ordered the Commissioner to “make available for inspection
    
    and/or copying within 21 days” the requested records, with students’ names, birthdates,
    
    social security numbers, and other identifying information redacted.
    
    ¶8     The Commissioner appealed and we initially dismissed the case without prejudice,
    
    as the District Court had not yet entered an order addressing the attorney fee issue. The
    
    District Court awarded fees to Krakauer on June 19, 2015, and the Commissioner again
    
    undertook an appeal.
    
                                  STANDARDS OF REVIEW
    
    ¶9     “We conduct de novo review of summary-judgment orders, performing the same
    
    analysis as does a district court pursuant to Rule 56 of the Montana Rules of Civil
    
    Procedure.” Lorang v. Fortis Ins. Co., 
    2008 MT 252
    , ¶ 36, 
    345 Mont. 12
    , 
    192 P.3d 186
    
    (citing LaTray v. City of Havre, 
    2000 MT 119
    , ¶ 14, 
    299 Mont. 449
    , 
    999 P.2d 1010
    ).
                                                 6
    ¶10    Substantively, Krakauer’s Petition was based upon the constitutional right to
    
    know, and the Commissioner likewise raises constitutional issues.          “Our review of
    
    questions involving constitutional law is plenary. A district court’s resolution of an issue
    
    involving a question of constitutional law is a conclusion of law which we review to
    
    determine whether the conclusion is correct.” Bryan v. Yellowstone Cnty. Elementary
    
    Sch. Dist. No. 2, 
    2002 MT 264
    , ¶ 16, 
    312 Mont. 257
    , 
    60 P.3d 381
     (internal citation
    
    omitted) (citing Schuff v. A.T. Klemens & Son, 
    2000 MT 357
    , ¶ 28, 
    303 Mont. 274
    , 
    16 P.3d 1002
    ).
    
                                          DISCUSSION
    
    ¶11 1. Does Krakauer, a Colorado resident, have standing to avail himself of the right
    to know granted under Article II, Section 9 of the Montana Constitution?
    
    ¶12    The Commissioner argues that Krakauer, as a resident of Colorado, does not have
    
    standing to pursue his Petition, because he is not a party intended to benefit from the
    
    Montana Constitutional right to know provision, and related statutes. The Commissioner
    
    argues this privilege was created and enacted for the sole benefit of Montana citizens, to
    
    allow them access to the workings of their own government.
    
    ¶13    In Schoof v. Nesbit, 
    2014 MT 6
    , 
    373 Mont. 226
    , 
    316 P.3d 831
    , we clarified the
    
    standing requirements, and more specifically the required showing for injury, under
    
    Article II, Section 9 of the Montana Constitution. After doing so for purposes of that
    
    case, we noted, “It is not appropriate in this case to address the parameters of standing for
    
    right to know and right of participation claims that may arise in other contexts.” Schoof,
    
    ¶ 25. Later the same year, we addressed another standing argument related to Article II,
    
                                                 7
    Section 9 of the Montana Constitution, in Shockley v. Cascade Cnty., 
    2014 MT 281
    , 
    376 Mont. 493
    , 
    336 P.3d 375
    . There, we held that the Montana Constitution does not prohibit
    
    a citizen of one Montana county from requesting public documents from a public body in
    
    another county.    Shockley, ¶ 22. We declined to address “the question of whether
    
    standing extends beyond Montana citizens[.]” Shockley, ¶ 23. That question arises here.
    
    ¶14    Article II, Section 9 of the Montana Constitution is short and clear. “No person
    
    shall be deprived of the right to examine documents or to observe the deliberations of all
    
    public bodies or agencies of state government and its subdivisions, except in cases in
    
    which the demand of individual privacy clearly exceeds the merits of public disclosure.”
    
    The Commissioner asks this Court to consider that, while the actual constitutional
    
    language uses the word “person,” the enabling statutes use the word “citizen” in
    
    describing the persons having the right to inspect public documents. Compare § 2-6-102,
    
    MCA (2013) (“Every citizen has a right to inspect and take a copy of any public writings
    
    of this state . . . .”) (repealed 2015), and 2015 Mont. Laws 1484, 1486 (effective date
    
    Oct. 1, 2015) (“Except as provided in subsections (2) and (3), every person has a right to
    
    examine and obtain a copy of any public information of this state.”). The Commissioner
    
    also cites to the use of the word “citizen” in transcripts of debates about the issue during
    
    the Montana Constitutional Convention.
    
    ¶15    As we have previously stated, Article II, Section 9 of the Montana Constitution is
    
    “unambiguous and capable of interpretation from the language of the provision alone.”
    
    Great Falls Tribune Co. v. Day, 
    1998 MT 133
    , ¶ 30, 
    289 Mont. 155
    , 
    959 P.2d 508
     (citing
    
    Great Falls Tribune v. District Court of Eighth Judicial Dist., 
    186 Mont. 433
    , 437, 608
                                                 
    8 P.2d 116
    , 119 (1980)). We have also stated that the provision is “unique, clear and
    
    unequivocal,” and that “[w]e are precluded, by general principles of constitutional
    
    construction, from resorting to extrinsic methods of interpretation.”2 Associated Press v.
    
    Bd. of Pub. Educ., 
    246 Mont. 386
    , 391, 
    804 P.2d 376
    , 379 (1991). We thus rely on the
    
    language of the provision itself, which expressly provides that “no person” shall be
    
    deprived of the right to examine documents or observe the deliberations of public bodies,
    
    except when required by the demands of individual privacy.
    
    ¶16    “Since the alleged injury is premised on the violation of constitutional and
    
    statutory rights, standing depends on ‘whether the constitutional or statutory provision
    
    . . . can be understood as granting persons in the plaintiff’s position a right to judicial
    
    relief.’” Schoof, ¶ 21 (citing Warth v. Seldin, 
    422 U.S. 490
    , 500, 
    95 S. Ct. 2197
    , 2206
    
    (1975)). Therefore, under the plain language of the provision, we hold that Krakauer,
    
    though an out-of-state resident, has standing to invoke the right to know guarantees under
    
    Article II, Section 9 of the Montana Constitution.3
    
    
    2
       The Commissioner correctly points out that we noted the language of the Constitutional
    Convention in Shockley, ¶ 20. However, we cited to the Verbatim Transcript in order to
    illustrate the general goal of Article II, Section 9 of the Montana Constitution—namely,
    government transparency and accountability. While the quotes we cited were illustrative of the
    general purpose of the provision, resorting to these extrinsic sources was unnecessary for
    interpretation. Because the constitutional convention delegates ultimately used the word
    “person” when describing the right to know, and in light of the amended wording of the open
    record statutory scheme (referenced above), which now also uses the term “person,” we are not
    persuaded by the Commissioner’s argument.
    3
      The standing of an out-of-state resident has not previously been presented to the Court as a
    contested legal issue, but, as a practical matter, out-of-state corporate residents have often
    availed themselves of the rights under Article II, Section 9 of the Montana Constitution. See,
    e.g., Associated Press, Inc., a New York not-for-profit corporation registered to do business in
    Montana v. Mont. Dep’t of Revenue, 
    2000 MT 160
    , 
    300 Mont. 233
    , 
    4 P.3d 5
    .
                                                   9
    ¶17 2. Is the release of records responsive to Krakauer’s request prohibited by the
    Family Educational Rights and Privacy Act of 1974 (FERPA), as amended, and/or by
    § 20-25-515, MCA?
    
    ¶18    The Commissioner contends that because Krakauer’s records request referenced a
    
    student by name, FERPA prohibits his office from releasing any records responsive to
    
    Krakauer’s request.      The Commissioner argues that § 20-25-515, MCA, likewise
    
    prohibits him from releasing the requested records. Krakauer responds that FERPA is
    
    essentially spending clause legislation that does not actually prohibit the University or the
    
    Commissioner from releasing records, that one of the explicit exceptions to FERPA’s
    
    general prohibition on the release of student records applies in this context, and that
    
    § 20-25-515, MCA, actually permits the release of the requested records.
    
                     a. General Applicability of FERPA
    
    ¶19    Krakauer argues that FERPA “simply does not prohibit anything”; it merely
    
    conditions federal funding on confidentiality compliance. He cites to Bd. of Trs. v. Cut
    
    Bank Pioneer Press, 
    2007 MT 115
    , ¶ 24, 
    337 Mont. 229
    , 
    160 P.3d 482
    , where we stated
    
    that FERPA has been described as “spending legislation.” Krakauer contends that the
    
    Commissioner’s fear of losing federal funding is “wholly speculative,” and points out
    
    that, in its amicus brief, the United States has conspicuously refrained from “any claim
    
    or assertion that . . . the [Montana University System] will suffer any penalty” if it
    
    releases the requested documents. Krakauer asserts that “FERPA’s spending legislation
    
    merely sets conditions on the receipt of federal funds and cannot forbid or prohibit any
    
    state action.”
    
    
                                                 10
    ¶20   Congress enacted FERPA to “protect the privacy of students and their parents.”
    
    Pioneer Press, ¶ 24; see also 34 C.F.R. § 99.2 (“The purpose of this part is to set out
    
    requirements for the protection of privacy of parents and students . . . .”). FERPA
    
    prohibits educational institutions and agencies from having a policy or practice of
    
    releasing education records or personally identifiable information contained in education
    
    records, and conditions receipt of federal monies on those institutions’ compliance with
    
    its directives. See 20 U.S.C. § 1232g. The University, as a recipient of federal funds,
    
    agreed in its Program Participation Agreement to comply with “The Family Educational
    
    Rights and Privacy Act of 1974 and the implementing regulations . . . [,]” and thereby
    
    assumed the risk the Secretary of Education would withhold future funds in the event of
    
    substantial non-compliance. See 20 U.S.C. § 1234c(a)(1).
    
    ¶21   Krakauer is seeking records related to a specific student’s disciplinary
    
    proceedings, and the Commissioner argues that Krakauer’s particular request fell
    
    squarely under FERPA’s prohibitions. The Commissioner offers that another kind of
    
    request would have been handled differently by his office: “If Krakauer had wanted an
    
    understanding of how the Commissioner’s office handles appeals related to student
    
    conduct code complaints . . . , he could have requested all decisions resolving complaints
    
    for some appropriate specified period of time, and he would have received the
    
    Commissioner’s decisions for a variety of cases with the names, dates and any other
    
    personally identifiable information redacted.”
    
    ¶22   Title 20, Section 1232g(a)(4)(A) of U.S. Code provides: “For the purposes of this
    
    section, the term ‘education records’ means, . . . , those records, files, documents, and
                                                11
    other materials which—(i) contain information directly related to a student; and (ii) are
    
    maintained by an educational agency or institution or by a person acting for such agency
    
    or institution.”   (Emphasis added.)      In Pioneer Press, ¶ 27, we noted that several
    
    jurisdictions had interpreted the term “education records” to exclude disciplinary records.
    
    However, since that decision, as the Commissioner and amicus United States point out,
    
    not only have FERPA regulations been broadened, but courts have recognized that
    
    disciplinary records constitute “education records” under FERPA.            See State ex rel.
    
    ESPN, Inc. v. Ohio State Univ., 
    970 N.E.2d 939
    , 946-47 (Ohio 2012) (“we agree with the
    
    Sixth Circuit and hold that the [student disciplinary] records here generally constitute
    
    ‘education records’ subject to FERPA . . . . The records here—insofar as they contain
    
    information identifying student-athletes—are directly related to the students”).4 FERPA
    
    regulations also now confirm that disciplinary records fall within the purview of the Act,
    
    authorizing limited, non-consensual release of student disciplinary records in certain
    
    circumstances. See, e.g., 34 C.F.R. § 99.31(a)(13) & (14). Based upon the understanding
    
    that the term “education records” encompasses disciplinary records, the Commissioner
    
    correctly asserted that the records at issue here fall under the application of FERPA.
    
    ¶23    It is also apparent to us that the Commissioner, as Chief Executive Officer of the
    
    Montana University System (MUS), was properly cognizant of the heavy strings that
    
    FERPA attached to the MUS’ federal funding. Although FERPA has been characterized
    
    4
      We distinguished such holdings in Pioneer Press on the ground that releasing records with all
    personally identifiable information redacted would not violate FERPA. Pioneer Press, ¶ 31.
    However, Krakauer’s request listed a specific student by name, thus requiring the
    Commissioner’s office to necessarily release personally identifying information regarding the
    student. See 34 C.F.R. § 99.3 (see “Personally Identifiable Information” at (g)).
                                                   12
    as “spending legislation,” we find Krakauer’s argument that it “prohibits nothing”
    
    delusive.   FERPA is more than mere words in the wind.             As outlined above, the
    
    University, a unit of the MUS, promised to abide by FERPA’s directives in exchange for
    
    federal funding.    By signing the Program Participation Agreement, the University
    
    acknowledged the potential consequence of loss of federal funding in the event that it
    
    violated FERPA. See United States v. Miami Univ., 
    294 F.3d 797
    , 808 (6th Cir. 2002)
    
    (“Even in the absence of statutory authority, the United States has the inherent power to
    
    sue to enforce conditions imposed on the recipients of federal grants. ‘Legislation
    
    enacted pursuant to the spending power [, like the FERPA,] is much in the nature of a
    
    contract: in return for federal funds, the States agree to comply with federally imposed
    
    conditions.’”) (citing Pennhurst State Sch. & Hosp. v. Halderman, 
    451 U.S. 1
    , 
    101 S. Ct. 1531
     (1981)). Whether or not FERPA explicitly prohibits state action, the financial risk
    
    it imposes upon MUS for violation of the statute is a real one. As the Commissioner
    
    stated, “The MUS should not be put in the position of predicting what decisions might be
    
    made by the federal government.”
    
                  b. Applicability of FERPA to the Subject Documents
    
    ¶24    FERPA prohibits institutions from having a “‘policy or practice of permitting the
    
    release of education records (or personally identifiable information contained therein . . .)
    
    of students without the written consent of the students or their parents.’” Miami Univ.,
    
    294 F.3d at 806 (internal brackets omitted) (citing 20 U.S.C. § 1232g(b)(1)).           The
    
    regulation defines “Personally Identifiable Information” to include information such as a
    
    student’s name, family names, date of birth, or “other information that, alone or in
                                                 13
    combination, is linked or linkable to a specific student that would allow a reasonable
    
    person . . . to identify the student with reasonable certainty[.]” 34 C.F.R. § 99.3 (see
    
    “Personally Identifiable Information” at (a)–(f)). Since our decision in Pioneer Press,
    
    this definition has been expanded to include “[i]nformation requested by a person who
    
    the educational agency or institution reasonably believes knows the identity of the student
    
    to whom the education record relates.” 34 C.F.R. § 99.3 (see “Personally Identifiable
    
    Information” at (g)). The records in question facially fall within the restrictions of
    
    FERPA, and the Commissioner rightly considered FERPA’s requirements in determining
    
    whether to release them. As noted by amicus United States, “[W]here a request targets
    
    education records relating to a particular student, identified by name, FERPA’s
    
    protections unquestionably apply.”     Under these provisions, had the Commissioner
    
    released the documents that Krakauer originally requested, using the specific student’s
    
    name, he would have violated the statute. FERPA and its accompanying regulatory
    
    scheme, including its expanded definition of “Personally Identifiable Information,”
    
    prohibited the unilateral release of the requested documents by the Commissioner, as
    
    Krakauer clearly knew the identity of the student that he named specifically in his
    
    request.
    
                  c. Exceptions Permitting Release Under FERPA
    
    ¶25    While FERPA generally prohibits the release of student educational records and
    
    personally identifiable information in those records, the records do not necessarily recede
    
    into the recesses of Chateau d’If, never to see the light of day. FERPA contains several
    
    
                                                14
    non-consensual exceptions that permit an institution to release educational records. See,
    
    e.g., 20 U.S.C. § 1232g(b)(1)(c); 20 U.S.C. § 1232g(b)(3).
    
    ¶26       Krakauer argues that the requested records must be made available under the
    
    exception that provides for release of the final results of a disciplinary proceeding “if the
    
    institution determines as a result of that disciplinary proceeding that the student
    
    committed a violation of the institution’s rules or policies with respect to such crime or
    
    offense.”      20 U.S.C. § 1232g(b)(6)(B).5           He argues that the exception “explicitly
    
    authorizes disclosure of records related to the Commissioner’s decision since it is,
    
    undisputedly, the ‘final result’ of the [MUS]’s disciplinary proceeding against [the named
    
    student].” The information permitted to be released under this exception is limited, as
    
    “final results” include “only the name of the student, the violation committed, and any
    
    sanction imposed by the institution on that student[,]” and other information, including
    
    “the name of any other student, such as a victim or witness,” can only be released upon
    
    the written consent of those other persons. 20 U.S.C. § 1232g(b)(6)(C)(i)-(ii). As noted
    
    by the Commissioner, this narrow exception permits release of limited information about
    
    “a violation” of certain University rules, and the sanction imposed. Thus, if no violation
    
    was found to have occurred, this exception, by its own terms, would not apply. The
    
    record before us here does not indicate whether the Commissioner ultimately held that a
    
    violation occurred, and thus, we are unable to now determine whether this exception
    
    authorized release of limited information related to Krakauer’s request. However, upon
    
    remand and after conducting an in camera review of the records, the District Court may
    
    5
        The District Court did not rule on the applicability of this exception.
                                                       15
    consider the applicability of this exception along with the other considerations set forth
    
    below.
    
    ¶27      Additionally, FERPA authorizes release of personally identifiable information in
    
    education records when “such information is furnished in compliance with judicial order,
    
    or pursuant to any lawfully issued subpoena, upon condition that parents and the students
    
    are notified6 of all such orders or subpoenas . . . .” 20 U.S.C. § 1232g(b)(2)(B); 34
    
    C.F.R. § 99.31(a)(9)(i). This exception broadly permits release of personally identifiable
    
    information pursuant to a “judicial order, or pursuant to any lawfully issued subpoena,”
    
    neither restricting the orders to those issued by particular, such as federal, courts nor
    
    limiting the legal basis or grounds for release of the records. 20 U.S.C. § 1232g(b)(2)(B).
    
    FERPA thus generally authorizes the release of records upon orders from courts acting
    
    properly within their jurisdiction. Krakauer’s petition sought an order pursuant to this
    
    exception.
    
                   d. Section 20-25-515, MCA
    
    ¶28      Notably, Montana law operates similarly to FERPA.               Chapter 357, Laws of
    
    Montana (1973), was entitled “An Act Requiring Montana Colleges and Universities to
    
    Develop Procedures to Protect a Student’s Right to Privacy Concerning . . . His College
    
    or University Records,” and stated it was “the legislature’s intent that an institution of the
    6
       The federal statute and corresponding regulation both require that such notice would be given
    to the student or parent in advance of the issuance of any subpoena or court order that might
    release such documents. Even if, as in this case, the subject student is not a party to the lawsuit,
    an opportunity is provided for the student (or parents) to be heard before such records are
    released. “The educational agency or institution may disclose information . . . only if the agency
    or institution makes a reasonable effort to notify the parent or eligible student of the order or
    subpoena in advance of compliance, so that the parent or eligible student may seek protective
    action . . . .” 34 C.F.R. § 99.31(a)(9)(ii).
                                                   16
    university system of Montana is obligated to respect a student’s right to privacy” in the
    
    student’s records. 1973 Mont. Laws 706. As codified from that 1973 Act, § 20-25-515,
    
    MCA, states:
    
           A university or college shall release a student’s academic record only when
           requested by the student or by a subpoena issued by a court or tribunal of
           competent jurisdiction. A student’s written permission must be obtained
           before the university or college may release any other kind of record unless
           such record shall have been subpoenaed by a court or tribunal of competent
           jurisdiction.7
    
    State law thus also prohibits disclosure of student records, but, similar to FERPA, permits
    
    release when “subpoenaed by a court or tribunal of competent jurisdiction.” Section 20-
    
    25-515, MCA.
    
    ¶29    Krakauer argues that § 20-25-515, MCA, “does not condition a university’s
    
    disclosure of student records on a court order. It merely requires a subpoena, which in
    
    Montana can be effectuated at any time by an issuing party’s counsel of record.” The
    
    Commissioner replies that, under Krakauer’s interpretation, the statute would have no
    
    meaning because “a party would only need to file a lawsuit and request the records
    
    through subpoena,” and, in any event, the District Court did not issue a subpoena here.
    
    ¶30    The District Court ordered the records be made available for inspection in its
    
    Memorandum and Order, not by a subpoena. Answering the Commissioner’s argument,
    
    a reading of the statute as enacted in 1973 makes it clear that the Legislature intended
    
    student records would be subject to release following legal process conducted “by a court
    
    or tribunal of competent jurisdiction,” and did not intend to restrict that legal process
    
    7
      Section 20-25-516(1), MCA, also requires that academic records “be kept separate from
    disciplinary and all other records.”
                                              17
    exclusively to the issuance of a “subpoena,” the purpose of which is to compel a person’s
    
    attendance in a court or proceeding. See § 26-2-102, MCA. The statute is satisfied by
    
    the issuance of a court order upon completion of that legal process.            Answering
    
    Krakauer’s argument, merely filing a lawsuit and requesting a records subpoena without
    
    a court’s consideration of a student’s privacy interests would fail to satisfy the statute’s
    
    requirements that student privacy be protected and that release of records be prohibited
    
    until a court or tribunal conducts that legal process. In Montana, the law regarding a
    
    student’s privacy is governed by the Montana Constitution, by which a student’s right to
    
    privacy in his or her records is balanced against the public’s right to know and obtain the
    
    records.   That process must be completed before requested records can be released
    
    pursuant to the applicable judicial exceptions in FERPA and § 20-25-515, MCA.
    
    ¶31 3. How does Article II, Section 9 of the Montana Constitution apply to the request
    for release of the subject student records?
    
    ¶32    The Commissioner challenges the District Court’s determination that the student
    
    records at issue should be released, arguing that the court “incorrectly shifted the balance
    
    between the right to privacy and the right to know in favor of Krakauer and his book deal
    
    and against the well-established privacy rights of the student named in his request[.]” In
    
    response, Krakauer argues that the public’s right to know outweighs the privacy
    
    expectation in the records here because the specific student at issue has a diminished
    
    expectation of privacy, which the District Court correctly determined.
    
    ¶33    The District Court emphasized the public exposure of the events in question,
    
    noting that “the entire incident, from the initial administrative investigation to the
    
                                                18
    conclusion of the criminal trial, is a matter of public record. The only aspect of the
    
    lengthy process that is not a matter of public record is the action taken by the
    
    Commissioner.” Citing approvingly of the U.S. District Court’s reasoning in Doe that
    
    “while there may be good reasons to keep secret the names of students involved in a
    
    University disciplinary proceeding, the Court can conceive of no compelling justification
    
    to keep secret the manner in which the University deals with those students,” the District
    
    Court determined that the subject student “does not have a reasonable expectation of
    
    privacy regarding the redacted records of the Commissioner,” and therefore ruled that the
    
    merits of public disclosure outweighed “the individual privacy rights of the student in this
    
    case.” The court did not conduct an in camera review of the records, but broadly ordered
    
    the Commissioner “to make available for inspection and/or copying” to Krakauer the
    
    records responsive to his request, subject to redaction of student identification
    
    information, presumably to be accomplished by the Commissioner.
    
    ¶34    Our concerns over the principles applied by the District Court in the constitutional
    
    balancing process, as well as the unique considerations under the federal and state law
    
    applicable to student records, compel us to reverse the District Court’s order and to
    
    remand this matter with instructions to the District Court to conduct an in camera review
    
    of the requested records, and to re-apply the constitutional balancing test to those records
    
    in accordance with the following analysis of the interests here at issue.
    
    ¶35    Article II, Section 9 of the Montana Constitution provides that “[n]o person shall
    
    be deprived of the right to examine documents . . . of all public bodies or agencies of
    
    state government and its subdivisions, except in cases in which the demand of individual
                                                 19
    privacy clearly exceeds the merits of public disclosure.” As we have explained, “[t]his
    
    constitutional provision generally requires information regarding state government to be
    
    disclosed to the public, except in cases where the demand of individual privacy clearly
    
    exceeds the merits of public disclosure.” Associated Press, Inc., ¶ 24. Indeed, “our
    
    constitution gives a high priority to the public’s right to know.” Lence v. Hagadone Inv.
    
    Co., 
    258 Mont. 433
    , 447, 
    853 P.2d 1230
    , 1239 (1993), overruled on separate grounds by
    
    Sacco v. High Country Indep. Press, 
    271 Mont. 209
    , 
    896 P.2d 411
     (1995). Krakauer
    
    asserts an interest in the process that the Commissioner employed in reviewing the
    
    student’s appeal and points out: “It cannot be denied that the entire rape culture at the
    
    University, and universities in general, has become one of increasing public import and
    
    concern[,]” and “The University’s compliance with its Title IX obligations is also one of
    
    public import and interest.” We acknowledge that Krakauer’s interest in the MUS’
    
    policies in responding to and handling complaints of alleged sexual assault are important
    
    matters of concern to the public.
    
    ¶36    However, as the District Court correctly noted, “[T]he right to know is not
    
    absolute. It requires a balancing of the competing constitutional interests in the context
    
    of the facts of each case, to determine whether the demands of individual privacy clearly
    
    exceed the merits of public disclosure.” Associated Press, Inc., ¶ 24 (bold in original)
    
    (citations and internal quotation marks omitted). Pursuant to the Montana Constitution,
    
    we have established a two-part test in order to strike a balance between the needs for
    
    government transparency and individual privacy: (1) “whether the person involved had a
    
    subjective or actual expectation of privacy[,]” and (2) “whether society is willing to
                                               20
    recognize that expectation as reasonable.” Great Falls Tribune Co. v. Day, 
    1998 MT 133
    , ¶ 20, 
    289 Mont. 155
    , 
    959 P.2d 508
     (citation omitted).
    
    ¶37    In the context of this particular case, as discussed above, the national and state
    
    legislatures have taken the affirmative action of enacting legislation establishing the
    
    privacy interests of students in their records, as a matter of law. This action sets this case
    
    apart from others involving general privacy interests, and courts must honor the unique
    
    privacy protection legislatively cloaked around the subject records by factoring that
    
    enhanced privacy interest into the balancing test.8 We have implicitly recognized this
    
    interest in the past, Pioneer Press, ¶ 36, and since then, as noted above, stricter FERPA
    
    regulations have been adopted. We cite, merely for illustrative purposes because it does
    
    not contemplate Montana law, the phrasing of the increased burden that must be shown
    
    by a petitioner in order to access protected student records, provided by the United States
    
    District Court for the Middle District of Pennsylvania:
    
           When a third-party seeks disclosure of education records covered by
           FERPA, the trial judge, in exercise of discretion, must conduct a balancing
           test in which the privacy interests of the students are weighed against the
           genuine need of the party requesting the information. While FERPA does
           not create a privilege, it does represent the strong public policy of
    
    8
       We have previously recognized enhanced or reduced privacy interests as part of the
    determination of whether society would recognize the privacy interest as reasonable, depending
    on the circumstances. See Great Falls Tribune Co. v. Cascade Cnty. Sheriff, 
    238 Mont. 103
    ,
    107, 
    775 P.2d 1267
    , 1269 (1989) (“[L]aw enforcement officers occupy positions of great public
    trust. Whatever privacy interest the officers have in the release of their names as having been
    disciplined, it is not one which society recognizes as a strong right.”); Billings Gazette v. City of
    Billings, 
    2013 MT 334
    , ¶ 49, 
    372 Mont. 409
    , 
    313 P.3d 129
     (“Where the status of the employee
    necessitates a high level of public trust, such as an elected official or high level employee, the
    expectation of privacy in misconduct may be found to be significantly lower than for an
    administrative employee. Similarly, an employee may have a lower expectation of privacy in
    misconduct related to a duty of public trust, such as responsibility for spending public money or
    educating children.”).
                                                    21
          protecting the privacy of student records. Courts balance the potential
          harm to the privacy interests of students with the importance and relevance
          of the sought information to resolving the claims before the court.
    
    Moeck v. Pleasant Valley Sch. Dist., No. 3:13-CV-1305, 
    2014 U.S. Dist. LEXIS 142431
    ,
    
    at *6-7 (M.D. Pa. Oct. 7, 2014) (internal citations omitted) (emphasis added). This
    
    enhanced privacy interest must be considered and factored into the constitutional
    
    balancing test on remand.
    
    ¶38   The District Court should not have concluded, without noting the unique facts
    
    here, that the student at issue “does not have a reasonable expectation of privacy
    
    regarding the redacted records of the Commissioner,” in reliance on Doe. The U.S.
    
    District Court in Doe was not presented, as here, with a records request explicitly
    
    identifying a particular student. Rather, the Doe case involved an unnamed litigant.
    
    While redaction may have served to protect the privacy interest of the unnamed litigant in
    
    Doe, and may well provide a privacy safety net in many situations, redaction of records
    
    provided in response to a request about a particular student may well be completely
    
    futile. As amicus United States points out, “when an educational institution is asked to
    
    disclose education records about a particular person, then no amount of redaction in [the]
    
    records themselves will protect the person’s identity, because the requestor knows exactly
    
    whom the records are about.” Obviously, records provided in response to a request
    
    naming a particular student will be about that student, whether redacted or not, and thus,
    
    there is more of machination than of cooperation in Krakauer’s offer, repeated at oral
    
    argument, to accept redacted records in response to his request.       Consequently, on
    
    remand, the District Court must consider whether the futility of redaction affects the
                                               22
    privacy analysis and the ultimate determination about what records can be released, if
    
    any.
    
    ¶39    We have recognized the efficacy of an in camera review of requested records by a
    
    district court to ensure that privacy interests are protected.      Billings Gazette, ¶ 42;
    
    Jefferson Cnty. v. Mont. Standard, 
    2003 MT 304
    , ¶ 19, 
    318 Mont. 173
    , 
    79 P.3d 805
     (“it is
    
    proper for a district court to conduct such an in camera inspection in order to balance the
    
    privacy rights of all of the individuals involved in the case against the public’s right to
    
    know.”). As these cases note, in camera review is particularly appropriate when the
    
    interests of third parties are involved. As the Commissioner stated at oral argument, the
    
    requested records could also include information pertaining to student members of the
    
    University Court, the victim, and other University students who acted as witnesses in the
    
    multiple-step process, and counsel hinted that the records are extensive. On remand, the
    
    District Court should review the requested documents in camera, and in the event it
    
    determines to release any document after conducting the balancing test, every precaution
    
    should be taken to protect the personal information about other persons contained in the
    
    documents.
    
    ¶40    We have stated that, when conducting the balancing test, a district court must
    
    consider all of the relevant facts of each case. See Associated Press, Inc., ¶ 24 (“It
    
    requires a balancing of the competing constitutional interests in the context of the facts of
    
    each case, to determine whether the demands of individual privacy clearly exceed the
    
    merits of public disclosure.”). Both parties argue at great length about various factors at
    
    issue here, such as the publicity that has followed this case, the source of the original
                                                 23
    request, the reasons behind the request, the named student’s status as an athlete at a
    
    publicly-funded university, and the prior litigation, all of which may be considered and
    
    weighted by the District Court when conducting the balancing test.            We decline to
    
    address these issues individually in favor of the District Court’s application of the
    
    balancing test on remand.
    
    ¶41    Finally, the Commissioner argues that an order by the District Court requiring
    
    release of documents pursuant to Krakauer’s request would “create binding precedent”
    
    establishing a “policy or practice” of the MUS to release personally identifiable
    
    information, in violation of FERPA.        However, we disagree.        As noted in Miami
    
    University, “Once the conditions and the funds are accepted, the school is indeed
    
    prohibited from systematically releasing education records without consent.” 294 F.3d at
    
    809 (emphasis added). A court order for release entered in one case does not require
    
    MUS to commence systematically releasing student records. Each case turns on its
    
    individual facts and circumstances, assessed and weighed through the balancing test.
    
    While court decisions do set precedent, MUS will nonetheless still evaluate each request
    
    on the basis of its individual facts, assessing the request in light of the precedent that has
    
    been created by litigation. This review is not a systematic policy or practice of releasing
    
    student records in violation of FERPA, which provides an exception for the release of
    
    such information “in compliance with judicial order, or pursuant to any lawfully issued
    
    subpoena[.]” 20 U.S.C. § 1232g(b)(2)(B). If the MUS believes a request cannot be
    
    fulfilled without violating FERPA and state protections, that decision can be reviewed by
    
    the courts following the filing of a petition by either MUS or the requestor.
                                                 24
                                          CONCLUSION
    
    ¶42    Having concluded that the records in question in this case appear to fall under the
    
    “Personally Identifiable Information” protection granted by FERPA, and also having
    
    concluded that FERPA and state statute provide an exception for release of information
    
    pursuant to a lawfully issued court order, we remand this case to the District Court for an
    
    in camera review of the documents in question. After giving due consideration to the
    
    unique interests at issue in this case, as discussed herein, the District Court will
    
    re-conduct the constitutional balancing test and determine what, if any, documents may
    
    be released and what redactions may be appropriate. As noted above, the exception to
    
    FERPA that allows for release of documents pursuant to a court order requires advance
    
    notice to the affected student or parents, and a district court must comply with this
    
    directive before releasing protected information. See Opinion, ¶ 27 n. 6. Because we
    
    remand this case for further proceedings, the award of attorney fees is vacated.
    
    ¶43    Reversed and remanded for further proceedings consistent with this Opinion.
    
    
    
                                                     /S/ JIM RICE
    
    We concur:
    
    /S/ MIKE McGRATH
    /S/ BETH BAKER
    /S/ JAMES JEREMIAH SHEA
    /S/ MICHAEL E WHEAT
    
    /S/ JOHN C. BROWN
    District Court Judge John C. Brown
    sitting for Justice Patricia Cotter
    
                                                25
    Justice Laurie McKinnon, dissenting.
    
    ¶44    Preliminarily, I disagree with the Court’s resolution of two smaller issues: our
    
    decision to remand for an in camera review to determine if an exception to nondisclosure
    
    applies pursuant to 20 U.S.C. § 1232g(b)(6)(B) and our failure to rule on the
    
    Commissioner’s request regarding attorney fees.
    
    ¶45    With respect to these issues, I agree with the Court that had the Commissioner
    
    released documents pursuant to Krakauer’s request for a specific student’s records, the
    
    Commissioner would have violated FERPA and its accompanying regulatory scheme.
    
    Opinion, ¶ 24. I depart from the Court, however, in our decision to remand for a
    
    determination of whether 20 U.S.C. § 1232g(b)(6)(B) applies, which is part of FERPA
    
    and the regulatory scheme. Pursuant to this provision of FERPA, a university may
    
    disclose to the public the final results of disciplinary proceedings against an alleged
    
    perpetrator of a crime of violence or nonforcible sex offense, but only if the university
    
    determines that the student violated the university’s rules or policies with respect to the
    
    offense.   The Commissioner has stated on several occasions that this provision is
    
    inapplicable. As the Court states, “if no violation was found to have occurred, this
    
    exception, by its own terms, would not apply.” Opinion, ¶ 26. I therefore would not
    
    remand for the District Court to consider the applicability of this exception when counsel
    
    for the Commissioner has represented, following acknowledgment of the specific
    
    exception, the inapplicability of the subsection. Indeed, it is apparent that the reason
    
    Krakauer is interested in obtaining all of the student’s records is that the Commissioner
    
    found no violation. Further, as the Court properly notes, this narrow exception would
    
                                                26
    only permit release of limited information related to the name of the student, the violation
    
    committed, and any sanction imposed by the institution. Opinion, ¶ 26. The record
    
    already establishes that no sanctions were imposed; the Commissioner has represented,
    
    through counsel, that the specific exception is inapplicable; and Krakauer’s request
    
    identifies the student by name. It is therefore pointless to remand for an in camera review
    
    to determine whether the exception applies.
    
    ¶46    Montana law also prohibits the Commissioner from releasing the student’s
    
    academic records in response to Krakauer’s request. Section 20-25-515, MCA, prohibits
    
    the release of a student’s records absent consent of the student or “subpoena [issued] by a
    
    court or tribunal of competent jurisdiction.”      At the time the Commissioner denied
    
    Krakauer’s request, the student had not consented to the release of his records and a
    
    subpoena or court order had not issued. Therefore, the Commissioner correctly refused
    
    to disclose the student’s academic records in response to Krakauer’s request. The Court
    
    nonetheless fails to find that the Commissioner’s actions in following both federal and
    
    state law within the context of a discretionary award of attorney fees pursuant to
    
    § 2-3-221, MCA, does not warrant a conclusion that Krakauer be responsible for his own
    
    fees and costs. Given the conclusion reached by the Court—that the Commissioner was
    
    required to follow FERPA and § 20-25-515, MCA—I would hold that the Commissioner
    
    is not responsible for Krakauer’s fees and costs since Krakauer has pursued an exception
    
    to FERPA and Montana law.         Given the context of FERPA, the federal regulatory
    
    scheme, and Montana law, it would be unreasonable to conclude that the Commissioner
    
    should be held responsible for Krakauer’s fees and costs.
    
                                                  27
    ¶47    A larger concern, however, is the Court’s decision to remand these proceedings for
    
    an in camera review by the District Court and our abbreviated analysis of the balancing
    
    test to be employed.1 In the context of this particular case, we have left unanswered
    
    many of the questions raised by the parties which, in my opinion, were incorrectly
    
    resolved as a matter of law by the District Court. Our guidance to the District Court is
    
    essentially that, “[t]his enhanced privacy interest must be considered and factored into the
    
    constitutional balancing test on remand.” Opinion, ¶ 37. In an attempt to describe “this
    
    enhanced privacy interest,” we cite “phrasing” from another jurisdiction, “merely for
    
    illustrative purposes,” but are unwilling to a set forth a standard, rule, or appropriate
    
    analysis regarding a statutorily protected enhanced privacy interest. In my opinion, we
    
    have failed to address the parties’ arguments. If correct legal principles and analyses are
    
    applied by this Court while considering the specificity of Krakauer’s request, it is not
    
    necessary to remand these proceedings to the District Court for an in camera review and
    
    balancing of privacy interests and the right to know.
    
    ¶48    When considering the disclosure of confidential information, the constitutional
    
    right to know granted by Article II, Section 9 of the Montana Constitution, must be
    
    balanced with the constitutional right of privacy granted by Article II, Section 10 of the
    
    Montana Constitution. We have stated that when balancing these competing interests, a
    
    court must perform a two-part test: (1) whether the individual has a subjective or actual
    
    expectation of privacy; and (2) whether society is willing to recognize that expectation as
    
    
    1
      Krakauer arguably foreclosed his opportunity for an in camera review of the records when he
    represented to the District Court and this Court that an in camera review was not necessary.
    
                                                 28
    reasonable. Bozeman Daily Chronicle v. City of Bozeman Police Dep’t., 
    260 Mont. 218
    ,
    
    225, 
    859 P.2d 435
    , 439 (1993). We have on many occasions determined that society is
    
    not willing to recognize as reasonable the privacy interest of individuals who hold
    
    positions of public trust when the information sought bears on that individual's ability to
    
    perform public duties. See Great Falls Tribune v. Cascade Cnty. Sheriff, 
    238 Mont. 103
    ,
    
    107, 
    775 P.2d 1267
    , 1269 (1989) (the public’s right to know outweighed the privacy
    
    interests of three disciplined police officers in the public release of their names because
    
    police officers hold positions of “great public trust”); Bozeman Daily Chronicle, 260
    
    Mont. at 227, 859 P.2d at 440–41 (investigative documents associated with allegations of
    
    sexual intercourse without consent by an off-duty police officer were proper matters for
    
    public scrutiny because “such alleged misconduct went directly to the police officer’s
    
    breach of his position of public trust . . .”); Svaldi v. Anaconda-Deer Lodge Cnty., 
    2005 MT 17
    , ¶ 31, 
    325 Mont. 365
    , 
    106 P.3d 548
    , (a public school teacher entrusted with the
    
    care and instruction of children held a position of public trust and therefore the public had
    
    a right to view records from an investigation into the teacher’s abuse of students); and
    
    Billings Gazette v. City of Billings, 
    2013 MT 334
    , ¶ 49, 
    372 Mont. 409
    , 
    313 P.3d 129
    
    (“an employee may have a lower expectation of privacy in misconduct related to a duty
    
    of public trust, such as responsibility for spending public money or educating children.”).
    
    ¶49    These cases, referred to by the Court in the Opinion, ¶ 37, n.8, are examples of a
    
    reduced expectation of privacy—reduced because the privacy interest is unreasonable
    
    and therefore not one that society is willing to recognize. They are examples of how a
    
    reduced expectation of privacy is balanced against the right of the public to know how its
    
                                                 29
    public monies are spent or its public institutions are managed. Undisputedly public
    
    employees have no statutory protection for their privacy rights when the information
    
    relates to the ability of the individual to perform his public duties. Bozeman Daily
    
    Chronicle, 260 Mont. at 226–27, 859 P.2d at 440–41. Here, in contrast, we are applying
    
    an enhanced privacy interest, with significant protections afforded that interest by the
    
    Montana Legislature in Title 20, Chapter 25.        In addition to § 20-25-515, MCA,
    
    prohibiting the release of student records unless there is consent or a lawfully issued
    
    subpoena, universities are prohibited from requiring students to waive privacy rights,
    
    § 20-25-512, MCA; students must be given written notice before university officials may
    
    enter their rooms, § 20-25-513, MCA; and academic transcripts may only contain
    
    information of an academic nature, § 20-25-516, MCA. The existence of these student
    
    privacy protections and the absence of any applicable exception establish both the actual
    
    expectation of privacy and the reasonableness of that expectation. Accordingly, when the
    
    privacy rights of the student may not be protected by redacting “personally identifiable
    
    information” the student’s right of privacy in school records outweighs the public’s right
    
    to know because that privacy interest has been statutorily determined to be reasonable.
    
    Once we have found an actual expectation of privacy that is reasonable, we must protect
    
    that privacy interest. See Bozeman Daily Chronicle, 260 Mont. at 228, 859 P.2d at 441.
    
    (“In this case . . . the victim of the alleged sexual assault and the witnesses involved in
    
    the investigation have a subjective or actual expectation of privacy which society is
    
    willing to recognize as reasonable. Accordingly, the privacy rights of the alleged victim
    
    and of the witnesses outweigh the public’s right to know and must be accorded adequate
    
                                                30
    protection in the release of any of the investigative documents at issue.”) Thus, whenever
    
    we cannot adequately protect a recognized reasonable expectation of privacy, the records
    
    may not be disclosed. The Court has presented no authority to the contrary.
    
    ¶50   Montana law does not distinguish between types of students.          The protected
    
    interest a student has in his education records is not diminished if the information is
    
    already public or if there has been publicity about an event involving the student.
    
    Information in a student disciplinary proceeding is broader than that presented in a
    
    criminal proceeding, where a defendant receives numerous constitutional and statutory
    
    protections. Student education records exist primarily to assist the university in the
    
    education of its students. The fact that information revealed through the evolution of a
    
    criminal proceeding may also be duplicated within the broader student disciplinary file is
    
    irrelevant to whether the student maintains his privacy rights in his education records.
    
    The occurrence of a criminal proceeding, which must be public, does not serve to strip a
    
    student’s privacy interests from his confidential education files.    The purposes and
    
    objectives underlying these separate proceedings are distinct and we should articulate as
    
    much for the trial courts. The laws protecting a student’s education records are neither
    
    limited nor lessened because a student has been charged with a criminal offense or is
    
    being scrutinized by the media. This remains true even though that student may be a star
    
    quarterback for a Montana university, a redshirt freshman from a small, rural Montana
    
    town, or any other student in whom the public may have a particular interest.
    
    ¶51   In agreeing with the Court that a student’s education records enjoy “the unique
    
    privacy protection [that is] legislatively cloaked around the subject records,” Opinion,
    
                                               31
    ¶ 37, I do not contend that a student’s privacy right is absolute. Many proceedings in
    
    other jurisdictions have balanced FERPA, state statutory provisions protecting the
    
    confidentiality of student records, and countervailing interests in disclosure See Ragusa
    
    v. Malverne Union Free Sch. Dist., 
    549 F. Supp. 2d 288
    , 293–94 (E.D.N.Y. 2008)
    
    (ordering the production of relevant education records in a discrimination case); Catrone
    
    v. Miles, 
    160 P.3d 1204
    , 1210–12 (Ariz. Ct. App. 2007) (holding that education records
    
    could be ordered to be produced in a medical malpractice case and noting “the
    
    protections afforded to educational records by statute do not prohibit, but rather permit,
    
    disclosure pursuant to court order”); Gaumond v. Trinity Repertory Co., 
    909 A.2d 512
    ,
    
    518 (R.I. 2006) (holding that FERPA does not bar the production of relevant education
    
    records pursuant to court order in a personal injury case). In many of these instances, the
    
    records were relevant to litigation that did not involve the records themselves. See
    
    Gaumond, 909 A.2d at 518 (distinguishing prior cases where public disclosure was
    
    sought by newspapers and was not granted).
    
    ¶52    In the context of Krakauer’s request for the specific student’s records, the
    
    student’s enhanced privacy interest would receive no protection. As the Court observes,
    
    “[o]bviously, records provided in response to a request naming a particular student will
    
    be about that student . . . .” Opinion, ¶ 38. Here, Krakauer requested a specific student’s
    
    records by name, because he wanted the specific student’s records.          Had he been
    
    interested in the process by which the Commissioner handled complaints of sexual
    
    assault, his request would not have been specific as to the student. Krakauer’s request of
    
    the Commissioner was to “inspect or obtain copies of public records that concern the
    
                                                32
    actions of the Office of the Commissioner of Higher Education in July and August 2012,
    
    regarding the ruling by the University Court of the University of Montana in which
    
    student [name redacted] was found guilty of rape and expelled from the University.”
    
    With the exception of 20 U.S.C. § 1232g(b)(6)(B), which the Commissioner indicated
    
    was inapplicable, state and federal privacy laws clearly prohibited the Commissioner
    
    from disclosing the records based upon the specificity of the request. Significant to the
    
    resolution of these proceedings, Krakauer did not make his request in a manner which
    
    would allow the student’s “unique” privacy right—cloaked with legislative protection,
    
    Opinion, ¶ 37—to receive any semblance of protection through, for example, redaction of
    
    personally identifiable information. If Krakauer had wanted an understanding of how the
    
    Commissioner’s office handles appeals related to the student conduct code and, in
    
    particular, sexual assaults, he could have requested all decisions resolving complaints for
    
    an appropriate specified period of time. Such an interest is substantial and appropriately
    
    protected by our constitutional and statutory provisions concerning the public’s right to
    
    know. It is undisputed that the Commissioner would have responded to such a request by
    
    supplying the student education records with personally identifiable information redacted
    
    in a manner which would have also protected the student’s substantial privacy interest in
    
    his education records. Thus, given the manner in which Krakauer has made his request,
    
    any “balancing” of interests that could include protection of the student’s enhanced
    
    privacy interest is unobtainable. It is clear that what Krakauer sought were particular
    
    student records for the publication of his book. Although this Court has precedent for the
    
    disclosure of confidential records of a particular person, those cases exist in the context
    
                                                33
    of a reduced expectation of privacy of public employees. The student here is not a public
    
    employee, but a student—and Montana law does not distinguish between types of
    
    students and their expectation of privacy.        Their records are uniformly private.
    
    Disclosure here violates not just the federal protections provided by FERPA, but also our
    
    own law in Montana.
    
    ¶53   I would reverse the judgment of the District Court. I would conclusively decide
    
    the issue of attorney fees and costs in favor of the Commissioner. Remand for in camera
    
    review is not necessary given the manner in which the request for records was made and
    
    that, as a result, no protection can be accorded the student’s substantial and weighty
    
    privacy interests. I would affirm on issue one.
    
    
                                                      /S/ LAURIE McKINNON
    
    
    
    
                                                34
    

Document Info

DocketNumber: 15-0502

Citation Numbers: 2016 MT 230

Filed Date: 9/19/2016

Modified Date: 11/8/2017

Authorities (22)

Warth v. Seldin , 422 U.S. 490 ( 1975 )

Pennhurst State School and Hospital v. Halderman , 451 U.S. 1 ( 1981 )

United States v. Miami University Ohio State University, ... , 294 F.3d 797 ( 2002 )

Associated Press v. Bd. of Public Educ. , 804 P.2d 376 ( 1991 )

Bozeman Daily Chronicle v. Police Dept. , 859 P.2d 435 ( 1993 )

Lence v. Hagadone Investment Co. , 853 P.2d 1230 ( 1993 )

Sacco v. High Country Independent Press , 896 P.2d 411 ( 1995 )

Great Falls Tribune Co., Inc. v. Day , 959 P.2d 508 ( 1998 )

Schuff v. AT Klemens & Son , 16 P.3d 1002 ( 2000 )

Associated Press, Inc. v. Montana Department of Revenue , 4 P.3d 5 ( 2000 )

LaTray v. City of Havre , 999 P.2d 1010 ( 2000 )

Bryan v. Yellowstone County Elementary School District No. 2 , 312 Mont. 257 ( 2002 )

Jefferson County v. Montana Standard , 79 P.3d 805 ( 2003 )

Svaldi v. Anaconda-Deer Lodge County , 325 Mont. 365 ( 2005 )

Board of Trustees v. CUT BANK PION. PRESS , 337 Mont. 229 ( 2007 )

Lorang v. Fortis Ins. Co. , 345 Mont. 12 ( 2008 )

Great Falls Tribune v. Sheriff , 775 P.2d 1267 ( 1989 )

Ragusa v. Malverne Union Free School Dist. , 549 F. Supp. 2d 288 ( 2008 )

Gaumond v. Trinity Repertory Co. , 909 A.2d 512 ( 2006 )

Catrone v. Miles , 160 P.3d 1204 ( 2007 )

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