The Norman Transcript

July 2, 2013

New motions filed in university suit

By Jessica Bruha
The Norman Transcript

NORMAN — New motions were filed last week in a case involving a lawsuit filed against the University of Oklahoma in May, according to plaintiff Joey Stipek.

Stipek, OU film and media studies senior and former online editor of The Oklahoma Daily, filed the lawsuit after the university repeatedly refused to release student parking citation information to him and other employees of the student newspaper.

Stipek said new motions filed Friday included a response to the defendants’ motion to dismiss and a motion for summary judgment. In the response, Stipek requested the court to deny the defendants’ motion to dismiss, which was filed June 3, court records show.

The lawsuit was filed specifically against David Boren, president of OU, and Rachel McCombs, director of the Open Records Office at OU.

The response states that in recent years, reporters at other student newspapers have requested campus parking citations under their state’s Open Records laws after receiving tips that student athletes were receiving special treatment. Stipek was attempting to write a similar story when he was denied access to the records.

Stipek was told they were protected by the Family Education Rights and Privacy Act (FERPA), the document states.

OU officials have previously stated that since student parking citations are protected by FERPA, they are exempt from disclosure under the Oklahoma Open Records Act.

Since the records are directly related to a student and maintained by the university, they can’t be disclosed under FERPA. This sets them apart from law enforcement records, which are required to be disclosed to the public, the officials said.

However, OU officials said they have provided and will continue to provide information related to any non-student ticket recipient, including faculty staff or university guests to whom FERPA does not apply.

Officials further stated they have already provided parking ticket information about Boren and other university officials. Also, the ticketing system is an administrative function, not a criminal one, the university said.

“This is the same argument which was also asserted unsuccessfully by school officials at the University of Maryland in 1998 and the University of North Carolina at Chapel Hill in 2011,” Stipek’s attorney, Nick Harrison, said in a response document.

In the response, Harrison said the plaintiff, Stipek, asserts the following:

· The Family Educational Rights and Privacy Act does not apply to campus parking citations and the University of Oklahoma is required to divulge all of its records under the Oklahoma Open Records Act.

· In the alternative, even if some information is protected by FERPA, the burden falls upon the University of Oklahoma to redact the protected information and the defendants cannot plead inadequacies in the filing systems they created and maintained to avoid their obligations to produce public records under the law.

Summary judgment: The motion for summary judgment was submitted with the response. In the summary, Harrison argued against some of the items listed in the defendants’ motion to dismiss the case.

· Naming a Proper Defendant: The defendants’ document says that the action should be dismissed on technical grounds because the plaintiff did not name a proper defendant in his pleadings.

Harrison stated in the summary judgment that the defendants failed to provide sufficient grounds to prevail under the standard for a motion to dismiss. He also said the plaintiff has named the appropriate parties and a dismissal is not warranted, even if OU should have been named as a defendant.

· Provisions of the Oklahoma Open Records Act: The motion to dismiss says the defendants complied with their obligations under the law and provided all of the required documents under the provisions of the Oklahoma Open Records Act.

The summary judgment says the plaintiff is entitled to the requested records under the provisions of the Oklahoma Open Records Act, further stating OU only cited FERPA and it does not apply to the plaintiff’s request.

Even if some of the requested records must be withheld, the burden is on OU to maintain those records in a fashion that allows them to redact the protected information and release the rest, the summary states.

· Sovereign Immunity: The summary also states that the defendants cannot claim sovereign immunity unless they have can point to a specific statutory basis for it.

“In their motion to dismiss, they failed to cite a legitimate statutory basis, alluding only to the Oklahoma Governmental Tort Claims Act,” the document states.

The document continues to state why the action does not qualify as a tort but rather a writ of mandamus.

· Writ of mandamus: The summary further states the defendants have a valid point that an affidavit is required for the writ of mandamus, so the affidavit was filed with the response and the “procedural flaw no longer exists.”

Plaintiff requests: In conclusion to the summary judgment, the document says the plaintiff asks that the court issue a writ of mandamus compelling the defendants to release the records described in the plaintiff’s demand letter dated May 8. The demand letter has been submitted as evidence, Stipek said.

The plaintiff also requests that the court award costs and fees and all such other relief as the court deems proper, the summary judgment states.