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.

2In Vaughn 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 standalone 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.

 11The Press-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.