Public University Students: Foia-Able?

The Freedom of Information Act (FOIA) allows American citizens to request full or partial disclosure of records from any federal agency. Public universities are among the state-level institutions subject to these acts. However, private universities are not subject to FOIA requests, even though they accept federal funding. This is because the Supreme Court decided that the mere receipt of government funds does not transform a private entity into a federal agency for purposes of FOIA. While private universities are exempt from FOIA requests, they are still subject to some level of federal oversight and must meet certain requirements to receive public money.

Public universities and FOIA

The Freedom of Information Act (FOIA) allows American citizens to request full or partial disclosure of records from any federal agency. These agencies are required to comply with the request unless it violates an exemption, for example, if the disclosure would threaten national security.

Every state has its own version of the FOIA, and public universities are among the state-level institutions subject to those acts. The FOIA does not apply to records held by state or local government agencies, or by private businesses or individuals. However, each state's public records laws will outline what records are accessible and what exceptions there are.

Public universities are subject to FOIA requests, and each university will have a records custodian, or a person or office that handles public records requests. While there is no specific form that must be used to make a request, it is recommended that requests are submitted in writing to the relevant coordinator. The request should be as specific as possible, and a background in the relevant state's public records laws will help frame a request that is unlikely to be rejected.

Public universities are required to comply with FOIA requests, and they generally charge requesters for the administrative costs of fulfilling the orders, though they can waive these fees if they choose.

Private universities and FOIA

Private universities are not subject to Freedom of Information Act (FOIA) requests, even though they accept federal funding. This is due to a combination of Supreme Court precedent and current federal statute, which shield private universities from federal information oversight.

However, private universities are still subject to some level of federal oversight, and there are “significant gaps” between the transparency requirements of private and public universities. For example, private universities must meet certain requirements to receive public money, such as tracking and reporting statistics about campus crime under the Clery Act.

In some states, there is ambiguity around whether police departments at private universities are subject to public records laws. In states like Massachusetts, public records laws explicitly do not apply to police officers and departments housed within private colleges and universities. However, in other states like Ohio, Texas, and Virginia, police departments at private universities are considered public bodies and are required to disclose public records.

While private universities may not be subject to FOIA requests, they are still accountable to some extent through indirect means, such as reporting requirements and other forms of federal oversight.

FOIA request process

The Freedom of Information Act (FOIA) gives the public the right to request access to internal records from any federal executive agency. FOIA also requires agencies to proactively release certain types of records even without an FOIA request. However, FOIA does not require agencies to create new records, conduct research, analyse data, or answer questions.

The FOIA request process can be outlined in 5 steps:

• Identify the agency: Every agency has a FOIA officer and website. The FOIA.gov index provides contact information, average processing times, and links to the agency's FOIA library or reading room.
• Find the retention schedule: Federal agencies do not keep every record created. Only 1-3% of federal records are considered permanent and kept at the National Archives and Records Administration (NARA). Records Control Schedules or "disposition schedules" can help identify what kinds of records an agency has.
• Draft the request: A FOIA request must be submitted in writing via email, regular USPS mail, or online forms provided by some agencies. The request should include a statement of request, the subject of the request with specific details and date ranges, fee status and waivers, the preferred format of documents, and contact information.
• Submit the request and wait: After submitting the FOIA request, a determination letter will be sent in response, ideally within 20 working days. The agency may release the documents in full, in part (redacted), or reject the request for a procedural reason.
• Decide what to do if it is denied: If unsatisfied with the agency's initial response, the requester can contact the FOIA professional handling the request or the agency's FOIA Public Liaison. Typically, sending a letter or email to the designated appeal authority is sufficient, with no additional fee or cost involved.

It is important to note that FOIA generally does not apply to universities, although public records can be requested through the California Public Records Act (PRA), which is modelled on FOIA.

FOIA and social media

The Freedom of Information Act (FOIA) is a US law that ensures citizens are informed, which is vital for a functioning democratic society. FOIA requests can be made for information held by federal, state, or local government agencies.

Social media posts and comments by government agencies are considered public records and are subject to FOIA requests. This is outlined in FOIA and records laws across the US, which define social media as a government record that must be retained and made available to the public. This includes content posted on platforms such as Facebook, Twitter, Instagram, and YouTube.

The unpredictable and constant nature of social media platforms has made social media records management a top concern for government communicators. The challenge is to capture and archive social media content and activity accurately and comprehensively, including hidden and deleted content, and the metadata that authenticates and verifies social media records.

FOIA and student journalists

The Freedom of Information Act (FOIA) provides that any person has a right to obtain access to federal agency records, except for records that are protected from public disclosure by exemptions or law enforcement exclusions. FOIA requests can be made for any agency record, and each agency's website will contain information about the types of records that the agency maintains.

FOIA requests are a powerful tool for journalists, including student journalists, to access information and hold institutions accountable. Student journalists at public universities can use FOIA requests to access public records and information related to the university's operations, such as financial records, meeting minutes, and correspondence. For example, student journalists at the University of North Carolina successfully used FOIA requests to access records related to campus sexual assault, and student journalists at Florida State University used public records to cover the athletics department.

When making a FOIA request, it is important to be as specific as possible with regard to names, dates, places, events, and subjects. Tools like FOIA Mapper can help identify what documents to request by searching for keywords and identifying what information exists, which agencies have it, and how to request it.

It is worth noting that FOIA applies to federal agency records, while state records are covered by state freedom of information laws, which vary across the United States. Additionally, FOIA does not provide access to records held by state or local government agencies, private businesses, or individuals, including school transcripts and student loan information.

Frequently asked questions