Thursday, February 23, 2012

West Point Stalls

I'm reaching out again and asking for a little help getting at some public records. Is there anyone out there with experience in FOIA law? Officials at West Point are pulling out all the stops in an attempt to keep us from seeing Maura's records. I'm also attempting to access records for another cadet and a teacher.

I'm specifically in need of a first amendment attorney.

21 comments:

  1. James, I'm a journalist and have a great source on first amendment rights and the FOIA, but in regard to the latter he specializes in New York state law. If you think he'd be helpful to you anyway, let me know. I'll gladly send you his contact information.

    ReplyDelete
    Replies
    1. I'd be interested in that contact. Thanks, Mel!

      Delete
    2. Great. I'll email it to you now ...

      Delete
    3. Would UCMJ/federal law supersede state law in the case of West Point?

      I'm not sure if "open records" and "FOIA" will do the trick here. To paraphrase a famous expression, James keeps using those words...I do not think they mean what he thinks they mean.

      Delete
  2. Hi James: Call your local ACLU to see if they can recommend someone....they would know !!!

    ReplyDelete
  3. James,

    In my former career, I worked with various agencies in sorting out FOIA requests and trying to determine applicable scopes, exclusions, etc. My feeling is that Maura's west point records are excluded from coverage under the Freedom of Information Act. Personnel files are out, as are records that raise individual privacy issues. Maura's records at West Point are tantamount to a personnel file. Records of individual behaviors, criminal or not, also impinge on individual privacy. This makes sense in terms of the overall point of the Act, which is to increase government accountability by making the records of government bodies disclosable; it is not really about finding out the status of individual relationships with said agencies/organizations. This is a good paper, written by an attorney on the scope of FOIA. http://www.cga.ct.gov/2008/rpt/2008-R-0333.htm Note the list of exclusions. At least 3-5 of them would apply to Maura's records. I think you have little hope of getting them via a FOIA request. ~ John Green

    ReplyDelete
  4. Strange. In Ohio, I can see any teacher's personnel file and any criminal record as long as someone has been charged in the case. We're backwards in a lot of ways but I guess we have a liberal open records policy. Still, I'm going to see what we can do.

    ReplyDelete
    Replies
    1. Then there needs to be a case, and someone must be charged in it. I am quite certain that there is nowhere in the US that individual citizens can access personnel files without some compelling public reason. And certainly, if teachers in Ohio have all of their personnel file records (dates of birth, ss#, address, educational transcripts, recommendations) made available to all comers, then that would certainly discourage good teachers from working there.

      Once someone employed by a school has been charged with a crime that involves the school, that record may then be released to the police via warrant or some other due process. But teachers are, first, employees and have rights of privacy. Students and their records, as others have noted here, are protected by federal law.

      If you are a parent, think for a moment about your child's life. Would you want each disciplinary event, every grade, every detention or suspension or conflict with a teacher or professor, or every documented illness to be turned over to reporters? Or police? Or potential employers once a student graduates and moves on?

      Delete
  5. Seems like there would be a difference between student records and public employment records, but I could be wrong. If you want to look for yourself, here's NY's education FOIL laws: http://www.dos.state.ny.us/coog/foil2.html

    Brian

    ReplyDelete
  6. I'm not an attorney, but I'm a college professor and I can tell you that student records are heavily protected by something called FERPA (Family Educational Rights and Privacy Act). It's extremely unlikely that you'll be able to find out anything about Maura unless it appears in public non-campus police records.

    -TJ

    ReplyDelete
  7. John,

    FOIA is for federal records, I don't think that would matter in these instances.

    Brian

    ReplyDelete
  8. You might be right James. But I am thinking that might have to do with the status of teachers handling your kids. They are in effect the products of the educational organizations in question, because they are the agents handling your kids. Maura at West Point was just a person bound up in the larger mission of the organization, so even expulsion is not really relevant to the performance of that organization. But I could be wrong ... for one thing, I did this mostly for civilian agencies in the Federal government. At a minimum, if its a grey area, it looks like they have some basis to fight (see that list in the article). I wish you good luck. ~ John Green

    ReplyDelete
  9. James, this is not a first amendment issue. You're asking for access to someone's private university records. I do not know much about the FOIA, but my guess is that it does not extend to a private individual's college records. You're not going to get anywhere going through traditional channels. If I were you, I would not even waste my time on this. I would be very surprised if there is not someone out there who knows what happened at West Point, but the institution of West Point is not going to budge on this. You need to find someone who knew Maura to tell you what happened. I still cannot believe, after all these years, that no one has explained what happened at West Point. I would think there would have at least been a reasonable rumor or two.

    ReplyDelete
  10. just contacted my friend who was in West Point same time as Maura, let's see what he says. Be back at you soon.

    ReplyDelete
  11. Is it possible that her records have been sealed due to the investigation into her disappearance?

    ReplyDelete
  12. James, you won't be able to get those due to FERPA I believe. I think that the campus probably briefed the students during a safety stand down of some sort and told them not to speak to the media about Maura. I'm certain police obtained her records there and if that happened, the commanding officer would know within a matter of hours. That is standard when it comes to the military that they only allow certain people to speak. Most of the graduates of the university are still serving their obligations today. I see West Point has an 80% graduation rate - I'm sure only a handful of people who dropped out knew Maura. You have to find those people who dropped out of West Point JR. The first way to start is getting a list of people accepted to west point that year.

    ReplyDelete
  13. This might be on a tangent but what if she was involved in credit card fraud at West Point and UMass and one of the people was mad enough to stalk her, set her up, kill her, etc. I think this would be more logical than some random serial killer catching her in a small period of time after her car crash! Maybe she messed with the wrong person when she stole their credit information.

    ReplyDelete
  14. I think you should try the FOIA angle too... It's an Army school... Most of everyone who works there are federal employees/contractors or military. Plus the cadets are under military contract...

    ReplyDelete
  15. Colleges and universities are required by the Buckley Amendment to keep student records and information confidential. Faculty and staff are required to get a student's signed permission even to talk to parents. It makes no difference that Maura was at West Point. She was a student and no one can access her information without permission. I am not sure how this applies to law enforcement, but even police would not be able to get grades without a subpoena.

    As for faculty and other employees, the university is their employer and must follow Human Resources law. I don't know what you are looking for, but I don't see how you can get personnel information for purposes relative to your work and profit. This is not a FOIA issue; it's an issue about privacy rights for students (who after all are not engaged in public activities) and employment law.

    ReplyDelete
  16. Is the WP honor code itself also classified? If not, it might be possible to study it and determine, within a range, what punishments accrue to what kinds of violations. Obviously, being asked to leave the Academy is far less stern than being expelled outright. What is the hierarchy of punishments? Does it go up from demerits, for example, to confinement to quarters, to suspension, to being asked to leave, to expulsion? I have no idea, obviously; I'm just positing that as a hypothetical. What does one have to do to be expelled? To be suspended (if that's even on the punishment roster)? And so forth. Does it make a difference if the violation is unethical but not illegal? If the violation involves physical violence versus conduct that's non-violent but unacceptable (such as smart-mouthing an officer)? Would ones GPA influence what punishment is meted out, assuming the conduct is non-violent and not illegal? Might MM have received a harsher punishment if she'd had an honor code violation on top of being a lousy student and a general screw-up?

    What is the difference in severity of punishment (if there is one) if one has committed the offense oneself versus being innocent but failing to snitch on another cadet who has done something wrong?

    Point is, Maura was accepted at UMass--yet it's hard to believe she received a glowing recommendation from WP. How did she swing that, unless it was a high GPA that did the trick? Where did the idea come from that she had been involved in credit card fraud at WP? Everyone seems to be accepting that as fact; I'm not sure why.

    Maybe a look at the honor code itself, if that's possible, would narrow down the possibilities of what the violation was--assuming there was one. Is it hard, proven fact that she was asked to leave, or is that just another inferential supposition?

    ReplyDelete
  17. Privacy Act trumps FOIA, which would apply to West Point. If Maura were officially declared dead, redacted versions of her records could be released to non-family members, with complete records after a certain period of time (I think it is 60 years). If she is still considered alive, heavily redacted parts of her records could be available to the public. Check the National Military Records Center at St. Louis, a branch of the National Archives. As a USMA cadet, Maura would be considered a military member. archives.gov should have info.

    ReplyDelete