                IN THE SUPREME COURT OF IOWA
                                No. 09–1612

                             Filed July 13, 2012


PRESS-CITIZEN COMPANY, INC.,

        Appellee,

vs.

UNIVERSITY OF IOWA,

        Appellant.



        Appeal from the Iowa District Court for Johnson County,

Douglas S. Russell, Judge.



        A state university appeals a district court order that it produce

certain educational records to a newspaper in response to a request

under    the   Open   Records   Act.    DISTRICT    COURT        JUDGMENT

REVERSED IN PART AND REMANDED.



        Thomas J. Miller, Attorney General, and Diane M. Stahle and

George A. Carroll, Assistant Attorneys General, for appellant.



        Paul D. Burns and Joseph W. Younker of Bradley and Riley, PC,

Iowa City, for appellee.



        Michael A. Giudicessi of Faegre Baker Daniels LLP, Des Moines,

and Mary Andreleita Walker of Faegre Baker Daniels LLP, Minneapolis,

Minnesota, for amicus curiae The Freedom of Information Council,

Des Moines Register & Tribune Company, Iowa Newspaper Association,
                                    2

The   Reporters   Committee   for   Freedom   of   the   Press,   Gazette

Communications, Inc., and The Associated Press.
                                       3

MANSFIELD, Justice.

      This case requires us to decide where disclosure ends and where

confidentiality begins under the Iowa Open Records Act and the Federal

Educational Rights and Privacy Act (FERPA).        See 20 U.S.C. § 1232g

(2006 and Supp. 2010); Iowa Code §§ 22.2, .7, .9 (2007).       In October

2007, two University of Iowa football players were accused of sexually

assaulting another student in a campus dorm room. This incident led to

a criminal investigation, criminal charges, and the conviction of one

player on a charge of assault with intent to inflict serious injury and the

other on a charge of simple assault. This incident also led to internal

actions and responses by the University, external criticism of the

University, and a special counsel investigation and report. Finally, this

incident led to the present lawsuit.

      The present litigation concerns Open Records Act requests that the

Iowa City Press-Citizen served on the University after reports of the

incident surfaced. Dissatisfied with the University’s initial response to

those requests, the Press-Citizen filed suit. The lawsuit resulted in more

documents being produced and others being submitted for in camera

review by the district court.          The court then ordered additional

documents produced, in some instances with redactions.

      The University has appealed that order in part.       It argues that

FERPA prohibits the disclosure of the remaining documents, including

even redacted versions of “education records” where the identity of the

student is known to the recipient.         The Press-Citizen counters that

FERPA does not supersede any obligation to produce records under the

Open Records Act, and in any event, the University has misinterpreted

FERPA. For the reasons discussed herein, we ultimately agree with the
                                        4

University’s arguments as to the meaning and force of FERPA, and

therefore reverse the district court’s judgment in part.

      I. Background Facts and Proceedings.

      During the early morning hours of Sunday, October 14, 2007, a

female student-athlete was allegedly sexually assaulted at the Hillcrest

dormitory at the University of Iowa.         Two University of Iowa football

players who were accused of involvement were suspended and later

dismissed from the team. A criminal investigation resulted in both men

being charged. One ultimately pled guilty to assault with intent to inflict

serious injury, and the other was convicted of simple misdemeanor

assault following a jury trial. See Iowa Code §§ 708.1, 708.2(1), 708.2(6).

      Numerous University officials were informed of the incident by

Monday, October 15, 2007; however, the parents of the student-athlete

believed their response was inadequate. Among other things, concerns

were expressed that the University had shown a lack of understanding

for the victim, had communicated poorly with her, and had allowed her

to be subjected to retaliatory harassment from other students. In 2008,

the University’s Board of Regents engaged an outside law firm (the Stolar

Partnership) to conduct a detailed investigation. Their report (the Stolar

Report)   criticized   some   aspects   of   the   University’s   policies   and

performance.

      Meanwhile, the incident received considerable publicity in the

media.    Articles appeared in which both football players were named.

Beginning November 13, 2007, the Iowa City Press-Citizen served

requests on the University under the Iowa Open Records Act. See Iowa

Code § 22.2(1) (2011) (“Every person shall have the right to examine and
                                           5

copy a public record. . .”). 1 The requests sought, among other things,

reports of attempted or actual sexual assaults; correspondence to or from

various University officials relating to any such incidents; and e-mail,

memos, and other records relating to any such incidents from October 1,

2007 to the present.

       The    University     initially   produced      only    eighteen     pages    of

documents, claiming that any other responsive documents were

protected from disclosure under Iowa Code section 22.7(1).                     See id.

§ 22.7(1) (protecting from disclosure “[p]ersonal information in records

regarding a student . . . maintained, created, collected or assembled by

or for a school corporation or educational institution maintaining such

records”).    On January 4, 2008, the Press-Citizen filed a petition in

district court seeking judicial enforcement of the Open Records Act. See

id. § 22.10 (providing for civil enforcement of the Act).

       Shortly after bringing suit, the Press-Citizen filed a motion to

compel. The motion asked the district court to order the University to

produce a Vaughn index of the documents it was withholding. 2 It also

urged that documents be produced in redacted form where necessary,

without identifying individual students.             The University resisted the
motion to compel based on, among other things, FERPA. On August 7,

2008, the district court granted the Press-Citizen’s motion to compel.


       1For the sake of convenience, we will refer hereafter to the 2011 Code version of

chapter 22. During the pendency of this case, there have been no changes to that
chapter that are material to our decision.
       2InVaughn v. Rosen, which arose under the Federal Freedom of Information Act,
the D.C. Circuit ordered the government to produce a descriptive index of the
documents it was withholding based on a claim they were exempt from production
under the Act. 484 F.2d 820, 826–28 (D.C. Cir. 1973). As the Press-Citizen pointed
out, a similar index was prepared by the school district in Des Moines Independent
Community School District Public Records v. Des Moines Register & Tribune, Co., 487
N.W.2d 666, 668 (Iowa 1992). That case arose under Iowa’s Open Records Act.
                                      6

The University thereafter released approximately 950 additional pages of

documents to the Press-Citizen; prepared a Vaughn index for over 3000

pages of documents (including both the pages that had been released

and over 2000 that were being withheld); and submitted those 3000

pages to the district court for in camera review.

      After conducting a painstaking in camera review, the district court

entered another order on August 31, 2009.            The order divided the

University’s documents into five categories:

            Category 1: documents         already   released   by   the
      University without redaction;

            Category 2: documents         already   released   by   the
      University with redactions;

             Category 3: documents “not protected as confidential
      and . . . subject to disclosure . . . without redaction”;

            Category 4: documents “subject to disclosure . . . with
      appropriate redactions made to remove student-identifying
      information including students’ names, parents’ names,
      addresses including E-mail addresses of students, dormitory
      and room numbers”;

             Category 5: “confidential documents not subject to
      disclosure under FERPA, Section 22.7 [of the Open Records
      Act], or attorney-client privilege rules.”

      The district court’s August 31 order directed the University to

disclose the Category 3 documents without redaction and the Category 4

documents with appropriate redactions within thirty days. On October

5, 2009, the district court entered a final judgment incorporating the

provisions of its August 31 order, again directing the disclosure of the

documents, and also awarding the Press-Citizen $30,500 in attorneys’

fees pursuant to Iowa Code section 22.10(3)(c). The University sought

and obtained a stay of the district court’s order pending appeal.         The

University now argues to us that the district court erred in ordering the
                                           7

production of some of the Category 3 and all of the Category 4

documents. 3

       II. Standard of Review.

       We review the district court’s interpretations of chapter 22 and

FERPA for errors at law. Rathmann v. Bd. of Dirs. of Davenport Cmty.

Sch. Dist., 580 N.W.2d 773, 776 (Iowa 1998).                 We review the court’s

application of those statutes de novo. Id.

       III. Analysis.

       A. The Iowa Open Records Act.                Generally speaking, the Iowa

Open Records Act (also known as the Examination of Public Records Act

or the Iowa Freedom of Information Act) requires state and local entities

to make their records available to the public. Iowa Code §§ 22.1(3), .2(1);

see also City of Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011)

(characterizing chapter 22 as “our state’s freedom of information

statute”).    The Act seeks “to prevent government from secreting its

decision-making activities from the public, on whose behalf it is its duty

to act.” Iowa Civil Rights Comm’n v. City of Des Moines, 313 N.W.2d 491,

495 (Iowa 1981).       We have said the Act establishes “a presumption of

openness and disclosure.”          Gabrilson v. Flynn, 554 N.W.2d 267, 271

(Iowa 1996). The University of Iowa, a state institution, is clearly covered

by the Open Records Act; indeed, we have previously held that a private

corporation commissioned by a state university to engage in fundraising

for the university is covered by the Act. Gannon v. Bd. of Regents, 692




       3The University appeals the district court’s order to the extent it requires it to
produce the following Category 3 documents: 133, 140–43, 202–03, 756–60, 835, 1009,
1230, 1479, 1488–89, 1814, 1869–70, 1878, 1878–88, 1973, 1988–89, 1993–95, 2031,
2043–44, 2055, 2062, 2063, 2217, 2234, 2251–56. We shall refer to them hereafter as
the “appealed Category 3 documents.”
                                     8

N.W.2d 31, 42–44 (Iowa 2005) (holding that the Iowa State University

and its private foundation were subject to the Open Records Act).

      The Open Records Act is subject to a number of listed exemptions,

both large and small. See Iowa Code § 22.7 (stating that “[t]he following

public records shall be kept confidential, unless otherwise ordered by a

court, by the lawful custodian of the records, or by another person duly

authorized to release such information” and listing sixty-four separate

exceptions). Nonetheless, the University does not argue that any of those

designated exceptions applies here. Its sole argument on appeal is that

federal law, i.e., FERPA, requires the appealed Category 3 and the

Category 4 documents to be kept confidential.

      B. FERPA. Congress enacted the Family Educational Rights and

Privacy Act or FERPA in 1974 “under its spending power to condition the

receipt of federal funds on certain requirements relating to the access

and disclosure of student educational records.” Gonzaga Univ. v. Doe,

536 U.S. 273, 278, 122 S. Ct. 2268, 2272–73, 153 L. Ed. 2d 309, 318

(2002). “The Act directs the Secretary of Education to withhold federal

funds from any public or private ‘educational agency or institution’ that

fails to comply with these conditions.” Id. at 278, 122 S. Ct. at 2273,

153 L. Ed. 2d at 318. The Act provides in part:

      No funds shall be made available under any applicable
      program to any educational agency or institution which has
      a policy or practice of permitting the release of education
      records (or personally identifiable information contained
      therein . . .) of students without the written consent of their
      parents to any individual, agency, or organization . . . .

20 U.S.C. § 1232g(b)(1). It also provides:

      No funds shall be made available under any applicable
      program to any educational agency or institution which has
      a policy or practice of releasing, or providing access to, any
                                        9
      personally identifiable information in education records . . .
      unless—

      (A) there is written consent from the student’s parents. . .

Id. § 1232g(b)(2).

      The Department of Education (DOE) has adopted regulations to

implement FERPA. See 34 C.F.R. § 99.3 (2009). In relevant part, they

define “education records” as follows:

              (a) The term means those records that are:

              (1) Directly related to a student; and

            (2) Maintained by an educational agency or institution
      or by a party acting for the agency or institution.

              (b) The term does not include:

            (1) Records that are kept in the sole possession of the
      maker, are used only as a personal memory aid, and are not
      accessible or revealed to any other person except a
      temporary substitute for the maker of the record.

           (2) Records of the law enforcement             unit   of   an
      educational agency or institution . . . .

            (3)(i) Records relating to an individual who is employed
      by an educational agency or institution, that:

           (A) Are made and maintained in the normal course of
      business;

            (B) Relate exclusively to the individual in that
      individual’s capacity as an employee; and

              (C) Are not available for use for any other purpose.

Id.

      The same regulations define “personally identifiable information”

as follows:

              The term includes, but is not limited to—

              (a) The student’s name;

          (b) The name of the student’s parent or other family
      members;
                                   10
            (c) The address of the student or student’s family;

            (d) A personal identifier, such as the student’s social
      security number, student number, or biometric record;

            (e) Other indirect identifiers, such as the student’s
      date of birth, place of birth, and mother’s maiden name;

             (f) Other information that, alone or in combination, is
      linked or linkable to a specific student that would allow a
      reasonable person in the school community, who does not
      have personal knowledge of the relevant circumstances, to
      identify the student with reasonable certainty; or

            (g) Information requested by a person who the
      educational agency or institution reasonably believes knows
      the identity of the student to whom the education record
      relates.

Id.

      In light of these definitions, the University argues that the

appealed Category 3 and the Category 4 documents cannot be produced

at all. As it understands the law, “education records” with “personally

identifiable information” cannot be released. Further, even if no student

is actually identified in the document, either because his or her name

and personal identifiers have been redacted or because the original

document did not have that information, the regulations prohibit

disclosure if the recipient would “know[] the identity of the student”—or

“a reasonable person” would be able to “identify the student with

reasonable certainty.” See id. In short, the University contends that if

the Press-Citizen or the student community would know the student

being discussed in the education record, the record cannot be divulged—

even in redacted form—under FERPA.

      For purposes of this appeal, we assume that the appealed Category

3 and Category 4 documents are in fact “education records” under
                                           11

FERPA. 4      The Press-Citizen does not dispute that if these documents

were produced, even in redacted form, it would be able to determine the

students to whom the documents refer. 5                However, the Press-Citizen

argues that FERPA is merely a funding statute that does not prohibit the

disclosure of documents whose production is otherwise required by the

Iowa Open Records Act.            Alternatively, the Press-Citizen argues that

FERPA does not allow the withholding of records, as opposed to their

redaction. We now turn to these points of disagreement.

       C. The Interplay Between FERPA and the Open Records Act.

The University argues that the relationship between FERPA and the

Open Records Act is a simple matter of federal supremacy.                      See U.S.

Const. art. VI (providing that the laws of the United States “shall be the

supreme Law of the Land”).             Iowa law, according to the University,

cannot authorize disclosure where federal law requires confidentiality.

The Press-Citizen, on the other hand, maintains that FERPA is not a

positive law at all, but simply a funding provision, which cannot override

the express directives of the Open Records Act.

       This debate has been played out in cases from other jurisdictions.

Some courts have concluded that FERPA does not prohibit the disclosure

of educational records.        See Bauer v. Kincaid, 759 F. Supp. 575, 589


       4The  Press-Citizen (in a footnote) and the amici curiae (at more length) argue
that some of the records may be “law enforcement” records rather than education
records. See 20 U.S.C. § 1232g(a)(4)(B) (stating that “[t]he term ‘education records’ does
not include . . . (ii) records maintained by a law enforcement unit of the educational
agency or institution that were created by that law enforcement unit for the purpose of
law enforcement”). This contention, however, was not raised below. Therefore, we may
not consider it as part of the present appeal. See DeVoss v. State, 648 N.W.2d 56, 63
(Iowa 2002) (declining to consider a ground for upholding the district court’s ruling that
was not presented below). In any event, we lack a sufficient record to do so.
       5No  one questions the thoroughness of the district court’s in camera review and
categorization of documents. The issues involved in the present appeal are simply legal
ones.
                                          12

(W.D. Mo. 1991) (“FERPA is not a law which prohibits disclosure of

educational records. It is a provision which imposes a penalty for the

disclosure of educational records.”); WFTV, Inc. v. Sch. Bd. of Seminole,

874 So. 2d 48, 57 (Fla. Dist. Ct. App. 2004) (“FERPA does not prohibit the

disclosure of any educational records. FERPA only operates to deprive

an educational agency or institution of its eligibility for applicable federal

funding based on their policies and practices regarding public access to

educational records if they have any policies or practices that run afoul

of the rights of access and disclosural privacy protected by FERPA.”); see

also Kirwan v. The Diamondback, 721 A.2d 196, 206 (Md. 1998)

(“Another alternative argument made by The Diamondback is that the

federal Family Educational Rights and Privacy Act does not directly

prohibit the disclosure of protected education records, that the only

enforcement mechanism under the Act is the withholding of funds from

institutions having ‘a policy or practice of permitting the release of

education records’ . . . [I]n light of our holding that the records are not

education records within the meaning of the federal statute, we need not

and do not reach this issue.” (citation omitted)).

       FERPA regulations allow for the possibility that an educational

institution “cannot comply with the Act or this part due to a conflict with

State or local law.” See 34 C.F.R. § 99.61. One could argue that the

mere recognition of this possibility in the regulations indicates that

FERPA does not supersede state law. 6

       6In one case where a school district disclosed publicly what it was paying for a
student’s out-of-state special education services, arguing that South Dakota law
required release of this information, the DOE advised the district that FERPA “does not
act to preempt conflicting State laws.” Letter from LeRoy S. Rooker, 20 IDELR 105, 106
(May 14, 1993). It also stated, however, that disclosure without consent “will violate
FERPA and jeopardize [the district’s] continued receipt of Federal education funds.” In
subsequent litigation over the same incident, a federal district court granted summary
judgment to the school district, reasoning, “The school board cannot be liable for
                                         13

       On the other hand, other courts have given direct effect to FERPA’s

provisions, treating them as positive law with binding force on state

authorities. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 525 (Pa.

Cmwth. Ct. 2011) (finding that the release of the requested reports “was

precluded by FERPA”).        In United States v. Miami University, 294 F.3d

797, 803 (6th Cir. 2002), a federal court of appeals affirmed an

injunction against the release of student disciplinary records covered by

FERPA. The court reasoned that the remedies for FERPA violations were

not limited to a cutoff of federal funding. Miami Univ., 294 F.3d at 809–

10.   Rather, once funds are accepted, “the school is indeed prohibited

from systematically releasing education records without consent.” Id. at

809; see also Rim of the World Unified Sch. Dist. v. Super. Ct., 129 Cal.

Rptr. 2d 11, 15 (Ct. App. 2002) (finding that FERPA preempts California

law    requiring     the    disclosure     of   student      expulsion     records);

Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind.

Univ., 787 N.E.2d 893, 904 (Ind. Ct. App. 2003) (stating that “FERPA is a

federal law which requires education records to be kept confidential”).

       In short, as one court has observed, “state and federal courts are

sharply divided on this issue.” Caledonian-Record Publ’g Co. v. Vt. State

Colls., 833 A.2d 1273, 1274–76 (Vt. 2003) (citing cases).

       We need not step into this controversy here, however, because we

believe a provision of the Iowa Open Records Act already gives priority to

FERPA. Section 22.9 of the Act provides:

complying with a state law which was not clearly preempted by federal law.” Maynard
v. Greater Hoyt Sch. Dist. No. 61-4, 876 F. Supp. 1104, 1108 (D.S.D. 1995). However,
DOE’s position in the Maynard matter must be considered together with its later
position in United States v. Miami University, 294 F.3d 797 (6th Cir. 2002) (discussed
below). In Miami University, DOE took the position, successfully, that FERPA barred
the release of education records whose disclosure would otherwise have been required
by Ohio law. Miami Univ., 294 F.3d at 811. Thus, from the Miami University case, one
could infer that 34 C.F.R. § 99.61 simply serves as an enforcement mechanism.
                                     14
            If it is determined that any provision of this chapter
      would cause the denial of funds, services or essential
      information from the United States government which would
      otherwise definitely be available to an agency of this state,
      such provision shall be suspended as to such agency, but
      only to the extent necessary to prevent denial of such funds,
      services, or essential information.

             An agency within the meaning of section 17A.2,
      subsection 1, shall adopt as a rule, in each situation where
      this section is believed applicable, its determination
      identifying those particular provisions of this chapter that
      must be waived in the circumstances to prevent the denial of
      federal funds, services, or information.

      Otherwise stated, the first paragraph of section 22.9 suspends the

operation of a provision of the Open Records Act if the provision would

cause the denial of federal funds to a state agency. This paragraph, we

believe, answers the Press-Citizen’s argument that FERPA in and of itself

is not a positive law. Section 22.9 gives it the effect of a positive law. If

the University regularly released educational records pursuant to section

22.2(1) of the Open Records Act, it would be engaging in a “practice” of

permitting the release of confidential education records, assuming the

records contained “personally identifiable information.”     See 20 U.S.C.

§ 1232g(b)(1). The sanction for this would be a loss of federal funding.

See 20 U.S.C. §§ 1232c, 1234c (authorizing the withholding of funds

when a recipient “is failing to comply substantially with any requirement

of law applicable to such funds”); see also id. § 1232g(f) (providing that

“[t]he Secretary shall take appropriate actions to enforce this section and

to deal with violations of this section, in accordance with this chapter,

except that action to terminate assistance may be taken only if the

Secretary finds there has been a failure to comply with this section, and

he has determined that compliance cannot be secured by voluntary

means”).
                                           15

       The Press-Citizen responds that the University has not shown the

disclosure of records would “definitely” cause it to lose funds as required

by the first paragraph of section 22. This argument, we believe, misreads

the statute. Section 22.9 requires that the federal funds be “definitely

available.”     That they are.       The University enjoys considerable federal

support. See University of Iowa, General Education Fund, FY 2011—Use

of    New       Revenues       and      Reallocations       (2011),      available      at

www.uiowa.edu/~fusbudg/2011_final_budget_spread.pdf                           (disclosing

total federal support of $258,999,082 for the University in fiscal year

2009). The statute does not have similar language requiring that the loss

be definite.

       The Press-Citizen urges, however, that a one-off production of

records in this case would not amount to a “policy or practice.”                      See

Gonzaga Univ., 536 U.S. at 288, 122 S. Ct. at 2278, 153 L. Ed. 2d at 324

(noting that FERPA’s nondisclosure provisions “speak only in terms of

institutional policy and practice, not individual instances of disclosure”

and “have an aggregate focus” (citation)); see also Achman v. Chisago

Lakes Indep. Sch. Dist. No. 2144, 45 F. Supp. 2d 664, 674 (D. Minn.

1999) (finding that “a solitary violation is insufficient to support a finding

that the District has violated FERPA as a matter of policy or practice”).

One problem with this argument, however, is that the production would

not be accidental or inadvertent and would necessarily set some kind of

precedent after having been authorized by the Iowa courts. A “policy or

practice” to some extent would be established. 7




       7While  the “policy or practice” must be of the “educational agency or institution,”
see 20 U.S.C. § 1232g(b), nothing in FERPA requires that it be a voluntary practice of
the university, as opposed to one compelled by state law.
                                          16

       The larger problem with the Press-Citizen’s position is that section

22.9 also operates on an aggregate basis.                That section asks us to

consider not whether a specific production of records in a particular case

would result in a loss of funds, but whether a “provision”—e.g., section

22.2(1), the overall legal requirement that public records be made

available—would cause such a loss.             Hence, we need to focus on the

provision itself, not just a one-time application of it, and determine

whether that provision would lead to a loss of federal funding for the

agency.    In other words, section 22.9 requires us to consider whether

section 22.2(1), the basic open records “provision,” applied consistently

to education records at the University of Iowa, i.e., “an agency of this

state,” would “cause the denial of funds,” and if so it “suspend[s]” that

provision. 8

       Of course, at the end of the day the federal government might not

try to defund the University of Iowa regardless of the circumstances. But

we do not think section 22.9 requires Iowa courts to make predictions

about policy decisions made in Washington D.C.                      That would be

unworkable. See Iowa Code § 4.4(3) (setting forth a presumption that “[a]

just and reasonable result is intended”). As we read the first paragraph
of section 22.9, it requires us to withhold legal effect from a provision of

the Open Records Act, such as section 22.2(1), if it appears that




       8Again,  Iowa Code section 22.9 does not ask whether a specific disclosure would
result in loss of funding, but whether a provision of the Open Records Act as applied to
a state agency would result in loss of funding.
        Neither party disputes that the University of Iowa is an agency within the
meaning of Iowa Code sections 22.9 and 17A.2. See, e.g., Papadakis v. Iowa State Univ.
of Sci. & Tech., 574 N.W.2d 258, 260–61 (Iowa 1997) (finding that a university’s
termination of a faculty member’s salary and benefits constituted “agency action” within
the meaning of section 17A.2(2)).
                                          17

provision (not just an isolated application of the provision) would result

in a loss of federal funding for a state agency.

       The Press-Citizen also relies on the second paragraph of section

22.9. It urges that the University has failed to adopt a “rule” as required

by that paragraph and, in the absence of such a rule, the first paragraph

has no effect.9      When the Open Records Act was originally enacted in

1967, only the first paragraph of section 22.9 was included. See 1967

Iowa Acts ch. 106, § 11 (codified at Iowa § 68A.9 (1971), now Iowa Code

§ 22.9).    The second paragraph was not added until 1984.                  See 1984

Iowa Acts ch. 1185, § 8 (codifed at Iowa Code § 22.9 (1985)).

       Our difficulty with this argument is that it treats two separate

mechanisms as if they were one. The first paragraph of section 22.9 is

written in the passive voice (“shall be suspended”) and is directed at

everyone.     Thus, the first paragraph comes into effect whenever “it is

determined,” without confining itself to determinations by an agency. By

contrast, the second paragraph is directed to agencies of this state,

telling each of them to adopt by rule “in each situation where [section

22.9] is believed applicable, its determination identifying those particular

provisions of this chapter that must be waived in the circumstances to

prevent the denial of federal funds, services, or information.” See also


       9The  University argues that Iowa Administrative Code rule 681—17.13(2)(d) is
such a rule. It provides:
       The following records shall be kept confidential. Records are listed by
       category, according to the legal basis for withholding them from public
       inspection.
              ....
              d. Student records (Family Educational Rights and Privacy Act of
       1974, as amended, 20 U.S.C. 1232g and Iowa Code section 22.7)
        In light of our determination that adoption of a rule under the second paragraph
of section 22.9 is not a prerequisite to the enforcement of the first paragraph of that
section, we need not reach this argument.
                                     18

S.F. 2294 Explanation, 70th G.A., Reg. Sess. (Iowa 1984) (“Section 8

requires state agencies to adopt certain rules regarding conditions of

federal funds.”). There is no indication in any part of section 22.9 that if

an agency should fail to discharge its duty under the second paragraph,

or should discharge it incorrectly, the legislature intended the first

paragraph to have no effect. After all, the first paragraph was a stand-

alone provision with independent force for seventeen years before the

second paragraph was enacted. In sum, we believe the 1984 amendment

simply imposed a new obligation on state agencies, without altering the

preexisting law.     We therefore find that the Open Records Act

incorporates confidentiality obligations from FERPA.

      D. FERPA       and     “Personally    Identifiable    Information.”

Assuming FERPA applies, the next issue is whether its obligations can be

met by redaction or whether it requires the withholding of entire records

in some instances.       The University argues that under the DOE’s

interpretation of “personally identifiable information,” an educational

record must be withheld if the recipient would know the student to

whom the record refers, even with the redaction of personal information,

such as the student’s name. See 34 C.F.R. § 99.3 (defining personally

identifiable information 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”). Given the

notoriety of the October 14, 2007 incident, the University contends that

no amount of redaction of personal information would prevent the

newspaper from knowing the identity of various persons referenced in

records relating to that incident.

      The Press-Citizen responds that under the Open Records Act,

access is a yes-or-no proposition. It cannot vary based upon the identity
                                     19

of the party making the request.      See, e.g., Ne. Council on Substance

Abuse, Inc. v. Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 761 (Iowa

1994) (rejecting a party’s contention under the Open Records Act “that

release of the applications should depend on the status of the party

seeking them”). The flaw in this argument, however, is that the relevant

legal standards in this case actually come from FERPA, incorporated into

Iowa law through section 22.9.

        The Press-Citizen also maintains that the DOE regulation should

not be followed, either because the relevant part of it did not become

effective until this lawsuit was already pending or because it is contrary

to prior caselaw. As noted by the Press-Citizen, current subparts (f) and

(g) of the definition of “personally identifiable information” were only

approved as a final rule by the DOE on December 9, 2008, and became

effective January 9, 2009. See Family Educational Rights and Privacy,

73 Fed. Reg. 74,806, 74,806 (December 9, 2008) (codified at 34 C.F.R. pt.

99). This action was filed January 4, 2008. The district court rendered

its decision on the Category 3 and Category 4 documents on August 31,

2009.

        Yet under federal law, there exists a “principle that a court is to

apply the law in effect at the time it renders its decision, unless doing so

would result in manifest injustice or there is statutory direction or

legislative history to the contrary.” Bradley v. Sch. Bd. of Richmond, 416

U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476, 488 (1974). True,

there is also the “principle that the legal effect of conduct should

ordinarily be assessed under the law that existed when the conduct took

place.” Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855,

110 S. Ct. 1570, 1586, 108 L. Ed. 2d 842, 865 (1990) (Scalia, J.,

concurring). Thus, the United States Supreme Court has asked whether
                                    20

applying the change in law to a pending case “would impair rights a

party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already

completed.” Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct.

1483, 1505, 128 L. Ed. 2d 229, 262 (1994); see also Fernandez-Vargas v.

Gonzales, 548 U.S. 30, 37, 126 S. Ct. 2422, 2427–28, 165 L. Ed. 2d 323,

334 (2006).

      We think the modified definition of “personally identifiable

information” easily passes the federal test for retroactivity. The relevant

“conduct” here is the University’s decision to withhold the appealed

Category 3 and the Category 4 documents. That conduct continued after

the lawsuit was filed. It was still ongoing even when the regulation was

modified. There was no reliance such that there would be prejudice if we

followed the new regulation.

      Also, the previous definition of “personally identifiable information”

was not all that different. It prohibited the disclosure of any “information

that would make the students’ identities easily traceable.”      34 C.F.R.

§ 99.3(f) (2008). The DOE substituted the new language because the old

language

      lacked specificity and clarity. We were also concerned that
      the “easily traceable” standard suggested that a fairly low
      standard applied in protecting education records, i.e., that
      information was considered personally identifiable only if it
      was easy to identify the student.

73 Fed. Reg. 74,806, 74,831 (December 9, 2008).

      But the DOE had issued guidance under the earlier language that

educational records could not be released if the recipient could determine

the student to whom reference was being made:

      If, because of other records that have been released, or other
      publicly available information, the redaction of names,
                                      21
         identification numbers, and dates and times of incidents is
         not sufficient to prevent the identification of a student
         involved in a disciplinary proceeding, including student
         victims and student witnesses, then FERPA prohibits an
         educational agency or institution from having a policy or
         practice of releasing the information.

See Letter to School District re: Disclosure of Education Records to Texas

Office     of    Attorney   General    (April   6,   2006),   available   at

www2.ed.gov/policy/gen/guid/fpco/ferpa/library/tx040606.html.             As

DOE explained in its notice of proposed rulemaking for the amendment,

“The proposed regulations are needed to establish this guidance in a

definitive and legally binding interpretation . . . .” Family Educational

Rights and Privacy, 73 Fed. Reg. 15,574, 15,583 (March 24, 2008).

Hence, the intent of the January 2009 amendment was to clarify the law,

not change it.

         The Press-Citizen also insists that it is not a legally permissible

construction of the term “personally identifiable information” for the

University to withhold entire documents, rather than redact them. We

disagree. The statute forbids federal funding of institutions that have a

policy or practice of releasing “education records (or personally

identifiable information contained therein . . . )” without parental

permission. See 20 U.S.C. § 1232g(b)(1). This either-or language, as we

read it, is at least subject to the interpretation that an entire record can

be withheld where redaction would not be enough to protect the identity

of a student. And as long as the underlying statute is ambiguous, we are

required to defer to any reasonable and permissible interpretation made

by the agency—here DOE. See Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781–82, 81 L. Ed.

2d 694, 702–03 (1984); Miami Univ., 294 F.3d at 814.
                                     22

      The Press-Citizen cites to a case where the Montana Supreme

Court ordered release of student disciplinary records with the names

redacted, even though the two students involved were known to the

requesting newspaper.    Bd. of Trs., Cut Bank Pub. Schs. v. Cut Bank

Pioneer Press, 160 P.3d 482, 487 (Mont. 2007).        But that case was

decided before the 2009 amendment to the FERPA regulations. In any

event, the school district never made the specific argument, as far as we

can tell, that FERPA prohibits release of an entire record where redaction

would not be enough to avoid identification of the students involved. The

Press-Citizen also cites to a passing observation of the Wisconsin

Supreme Court that “once personally identifiable information is deleted,

by definition, a record is no longer an education record since it is no

longer directly related to a student.” Osborn v. Bd. of Regents of Univ. of

Wis. Sys., 647 N.W.2d 158, 168 n. 11 (Wis. 2002). That comment also

was made before the 2009 amendment to the regulations, and that case

likewise did not address the particular issue that is now before us.

      Thus, consistent with current DOE regulations, we conclude that

educational records may be withheld in their entirety where the

requester would otherwise know the identity of the referenced student or

students even with redactions.

      The Press-Citizen criticizes this position as a matter of policy. In

its view: “The University’s position boils down to a peculiar argument

that FERPA applies on a sliding scale, saving its most vigorous

application to records concerning crimes and alleged crimes that are the

most notorious.”   This feature of FERPA, however, derives from earlier

determinations by Congress and the DOE that preservation of student

confidentiality should be an overarching goal of the statute. It is not our

role to reexamine those decisions.
                                         23

      E. Additional Issues.         The Press-Citizen points out that FERPA
has an exception when education records are “furnished in compliance
with judicial order, or pursuant to any lawfully issued subpoena, upon
condition that parents and the students are notified of all such orders or
subpoenas in advance of the compliance therewith by the educational
institution.”     See 20 U.S.C. § 1232g(b)(2)(B); see also 34 C.F.R.
99.31(a)(9)(i) (2009) (indicating that an education record may be
disclosed “to comply with a judicial order or lawfully issued subpoena”).
This exception has been applied in prior cases.              See, e.g., 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). But in those 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).                 It would
make no sense to interpret the “judicial order” exception as authorizing
disclosure whenever a party chose to bring a separate court action
seeking access to education records.              This would lead to a highly
incongruous situation where FERPA would only have effect until the
party requesting records chose to go to court, at which point FERPA
would cease to have any effect at all. 10

      10Courts   have rejected that viewpoint.   See Ragusa, 549 F. Supp. 2d at 292
                                           24

       The Press-Citizen also argues that the University has been
inconsistent in its position. As the Press-Citizen points out, University
officials, including the president, the athletic director, and the football
coach have commented publicly on aspects of the University’s response
to the alleged sexual assault. In addition, the seventy-two-page Stolar
Report that was commissioned by the Board of Regents contains a
detailed narrative and critique of the University’s response to the
incident, replete with references to “Football Player #1,” “Football Player
#2,” and “the Student-Athlete.”
       We are not persuaded that the University has been altogether
consistent. At the same time, commentators have criticized FERPA for
permitting institutions to behave inconsistently—revealing student
information when it puts the university in a good light and withholding it
when it does not. See Matthew R. Salzwedel & Jon Ericson, Cleaning Up
Buckley: How the Family Educational Rights and Privacy Act Shields
Academic Corruption in College Athletics, 2003 Wis. L. Rev. 1053, 1105–
06 (2003) (commenting that universities “provide disclosure that is
selective in application”). Regardless, the Press-Citizen does not attach
any particular legal significance to the University’s alleged inconsistency.
It provides no legal authority in this section of its brief and, at oral
argument, specifically disclaimed any waiver argument.                      Cf. City of
Riverdale, 806 N.W.2d at 657 (finding a municipality had waived the


(stating that the judicial order exception to FERPA does not end the inquiry and
observing that “ ‘before approval is given, the party seeking disclosure is required to
demonstrate a genuine need for the information that outweighs the privacy interests of
the students’ ” (quoting Rios v. Read, 73 F.R.D. 589, 599 (E.D.N.Y. 1977))); see also Zaal
v. State, 602 A.2d 1247, 1256 (Md. 1992) (commenting “[t]hat the statute exempts a
local school system or educational institution which discloses ‘personally identifiable
information’ in compliance with a judicial order from sanctions does not mean that a
student’s privacy or confidentiality interest in his or her education records is
automatically overridden whenever a court order to review them is sought”). In short,
the “judicial order” exception informs an educational institution when it may release
educational records; it does not inform a court when it may enter an order.
                                          25

exemption in section 22.7(50) of the Open Records Act).                     For these
reasons, the Press-Citizen’s inconsistency argument does not alter our
conclusions as to what FERPA requires in this case.
       The amici curiae urge that it would violate federal and state

constitutional provisions if access to public documents could depend

upon the knowledge or identity of the requester. Although this argument

is developed at some length in the brief of the amici, it was not raised

below or by the Press-Citizen.          We therefore decline to reach it.           See

Mueller v. St. Ansgar State Bank, 465 N.W.2d 659, 660 (Iowa 1991)

(noting that “[u]nder Iowa law, the only issues reviewable are those

presented by the parties”); see also Rants v. Vilsack, 684 N.W.2d 193,

198–99 (Iowa 2004) (declining to reach an argument raised by amici

curiae that was not presented to the district court).

       IV. Conclusion.

       We reverse the judgment of the district court to the extent it orders

the production of the appealed Category 3 documents and the Category 4

documents. The University has not challenged any other aspects of the

district court’s judgment, including its award of attorneys’ fees to the

Press-Citizen. Therefore, we affirm the remainder of the judgment. 11 We

remand for further proceedings in accordance with this opinion.

       DISTRICT COURT JUDGMENT REVERSED IN PART AND

REMANDED.

       All justices concur except Appel, Wiggins, and Hecht, JJ., who

dissent.




       11ThePress-Citizen contends in its brief that the University has failed to produce
even the Category 3 records that are not the subject of this appeal. Their production
should occur, if it has not already taken place.
                                     26

                                #09–1612, Press Citizen Co. v. Univ. of Iowa

APPEL, Justice (dissenting).

      I respectfully dissent.

      The Federal Educational Rights and Privacy Act (FERPA) states

that federal funds shall not be available “to any educational agency or

institution which has a policy or practice” of releasing personally

identifiable information without the written consent of parents.         20

U.S.C. § 1232g(b)(1) (2006). In my view, compliance with a judicial order

pursuant to a generally applicable state public records statute does not

amount to a policy or practice of any educational agency or institution.

See generally Maynard v. Greater Hoyt Sch. Dist. No. 61-4, 876 F. Supp.

1104, 1108 (D.S.D. 1995). The majority opinion repeatedly cites “policy

or practice,” while omitting the statutory requirement that the “policy or

practice” must be one of the “educational agency or institution.”        In

effect, the majority opinion amends the statute to strike the words

“agency or institution.”

      In light of this explicit wording of FERPA and the Iowa Open

Records Act, I would not rewrite either statute. While federal law plainly

is supreme, I find no conflict between FERPA and the Iowa Public

Records Act. As a result, I would require disclosure of the public records

in this case.

      Wiggins and Hecht, JJ., join this dissent.
