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Privacy law limits ASUA inquiry

By Mika Mandelbaum
Arizona Daily Wildcat
Friday, December 2, 2005
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Investigation of complaints will remain protected

Despite President Cade Bernsen's status as an elected official, the investigation of the sexual harassment allegations against him will remain confidential because of student privacy laws, officials said.

Usually, information about elected officials is public record, but because Bernsen is a student, formal complaints about him are protected by the Family Educational Rights and Privacy Act, a federal statute that requires information directly related to a student and maintained by an educational agency be kept private, said university attorney Steve Adamczyk.

When the Dean of Students Office receives a complaint about a specific student, it is considered part of that person's record, and the only way information about it can be released is with that student's written consent or with an exception in the FERPA law, Adamczyk said.

"I don't think anyone believes this is what Congress had in mind when it enacted the law," said Mark Goodman, executive director of the Student Press Law Center. "But it was drafted very broadly and as a result, schools are able to use it to deny access to information they would just assume the public not be aware."

The information disclosed publicly so far is from the complainants themselves, which Adamczyk said FERPA does not control.

Citing FERPA, UA officials are keeping their lips locked about the investigation, as several messages for the Dean of Students Office went unreturned yesterday.

But certain records from student government might also be kept confidential if university attorneys find the documents are also protected by FERPA.

The Arizona Daily Wildcat requested e-mail correspondence records between Bernsen and Tyler Carrell, former ASUA elections commissioner, which may be denied if attorneys find the release of the documents is protected by FERPA, said Paul Allvin, associate vice president of communications.

Bernsen absent from regents meeting

ASUA President Cade Bernsen was not present at yesterday's Arizona Board of Regents meeting, an impeachable offense according to the ASUA constitution.

Attending the regents meeting falls under the powers and duties of the president outlined by the Associated Students of the University of Arizona constitution.

"The student body president will attend all regular meetings of the Arizona Board of Regents," states Article III, Section III, Clause 9 of the constitution.

The constitution states violation of these duties are grounds for impeachment.

Although the ASUA Senate can bring impeachment charges forward, senators do not plan to yet because impeachment charges are already levied against Bernsen, said Sen. Matt Boepple.

"We're not deciding to pursue (charges) at this moment," said Boepple, a political science sophomore.

The decision to bring the additional charge against Bernsen could be decided on Monday or Tuesday, said Sen. Rhonda Tubbs.

ASUA Executive Vice President Erin Hertzog, a journalism junior, declined to comment. Members of the Arizona Students' Association also declined to comment.

Bernsen would not comment.

- Nick Smith

But the Wildcat has never had a problem obtaining these documents in the past, said Editor in Chief Aaron Mackey.

"It's highly coincidental that circumstances now would preclude us from documents and records that we had been getting freely for years," Mackey said.

The attorneys are investigating if documents generated from positions that can only be held by students, including elected officials, are covered by FERPA laws, Allvin said.

"It's a gray area and is a question that hasn't been asked before," Allvin said. "We are trying to do the responsible thing."

Mackey said the Wildcat is also trying to do the responsible thing by reporting the truth to the public.

"The press has historically served as a watchdog against government and other power institutions," Mackey said. "Our responsibility is to our community and readers first, and policies like FERPA inhibit our ability to execute our charge."

There has not been a court in the country that has said records of student government at a public university do not have to be released because of FERPA, Goodman said.

"It sounds like they're trying to manipulate this law to justify denying something that is embarrassing to the university," Goodman said. "It's being applied incorrectly and in a way that suggests the university is thumbing its nose at the public's right to know."

Ultimately, the administration is using the law to withhold information from the public, Mackey said.

"In any other instance of public officials the public's right to know outweighs concerns for privacy, especially when the public official is elected," Mackey said. "It's a shame that FERPA has been misconstrued to actively limit the public's right to information."

If it is determined the Wildcat is denied access to the Associated Students of the University of Arizona documents, the paper will pursue it further, Mackey said.

"We will evaluate our options and consult with legal representatives to determine whether our right to public information has been violated," he said.

University attorneys are in the process of investigating the implications of the privacy laws on the ASUA documents and hope to have it resolved soon, Allvin said.

"Attorneys are working very hard to make a careful and clear determination," Allvin said. "We want to make sure that it is legal for us to fulfill the request and that we are not violating federal law."

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