Two weeks ago, I blogged about the federal grand jury subpoenas issued to Drake University, and four activists who attended a Nov. 15 forum at Drake. The federal government’s claim was that at the Nov. 15 forum people were actually conspiring to commit a criminal trespass at a military base; the trespass itself took place the following day. My view was (and still is) that such subpoenas to investigate potentially criminal activity — the conspiracy to commit trespass — are constitutionally permissible; and while I wasn’t sure “that such subpoenas are the proper tools when investigating relatively low-level misconduct such as this,” I thought they were improper.
Nonetheless, as I mentioned in a later post, when the subpoenas were dropped, I was more troubled by another aspect of the case: The order that Drake not reveal the contents or the existence of subpoena. Such an order, I thought, might well be a violation of Drake’s constitutional rights, and might keep Drake from blowing the whistle on the incident (though in fact the subpoena was indeed publicized by some people, whether via a violation by Drake or not). I said that I hoped to blog a bit more about that order.
I’ve now managed to get copies of some of the key documents related to the nondisclosure order. I’ve also put the subpoena (or at least an early version of the subpoena; there seems to be a later version that I’m still trying to get) on the Web here, and motions and other documents related to the nondisclosure order here.
Here’s what seems to have happened, according to the government: When Drake was first served with a subpoena for the records related to the Nov. 15 meeting — the one at which the government claims people were conspiring to commit the trespass — Drake “informed the [government] that some of the records requested in response to this subpoena fall within the broad category of ‘education records’, thereby activating the Family Educational and Privacy Rights Statute set forth at [20 U.S.C. sec. 1232g].” This statute, commonly known as FERPA, provides, in relevant part (1232g(b)(1)(J)), that:
(i) the entity or persons designated in a Federal grand jury subpoena, in which case the court shall order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished to the grand jury in response to the subpoena; and
(ii) the entity or persons designated in any other subpoena issued for a law enforcement purpose, in which case the court or other issuing agency may order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished in response to the subpoena.
The government therefore asked, pursuant to subsection (i), for an order that Drake “not . . . disclose the existence or contents” of the grand jury subpoena, and the court entered such an order.
So here’s what it seems like to me:
(1) As I mentioned before, I believe the grand jury subpoenas were likely overkill, since they were investigating an alleged conspiracy to commit misdemeanor trespass — not a very serious offense. Nonetheless, I think they are within the government’s power to ask and the grand jury’s power to issue, since they seem pretty closely focused at figuring out the attendance at the meeting that allegedly involved the conspiracy to commit trespass. (The demand for names of the organization’s officers and meeting agendas and annual reports filed with the University may be less closely focused on the conspiracy, but even so I think they are probably subject to subpoena; and to my knowledge, such information tends to be not confidential, and I think not covered by First Amendment privacy-of-expressive-association guarantees.) And while I may disagree with the government’s exercise of its prosecutorial discretion, I’m not that troubled by it.
The nondisclosure order is, I think, probably required and certainly authorized by the best reading of FERPA. The statutory text does say “shall order, for good cause shown,” which is rather opaque — “shall order” seems to contemplate a mandate, as does the distinction from “may order” in the next subsection, while “for good cause shown” seems to contemplate a discretionary judgment by the court. Nor is it clear what is needed to show “good cause.” Is the fact that the subpoena would reveal some records “directly related to a student” sufficient “good cause” for the nondisclosure order? Or is something else necessary? Nonetheless, it seems to me quite reasonable that, especially faced with Drake’s reference to FERPA as a possible constraint, the government would seek the confidentiality order that the statute at least contemplates.
Now I should say that I’m not wild about such confidentiality orders, even when statutorily authorized. I’ve generally argued in my Freedom of Speech and Information Privacy, 52 Stanford L. Rev. 1049 (2000), that many laws that mandate nondisclosure of supposedly private information may violate the First Amendment. FERPA may be defensible on some semi-contractual grounds too complex to get into here; but one might certainly argue that this particular provision of FERPA should be struck down, and that educational institutions should be free to discuss subpoenas issued for student records.
Nonetheless, mine is certainly not a majority view. It seems quite plausible that a prosecutor would think this FERPA provision is perfectly constitutional, and would therefore try to minimize any possible FERPA objections to the subpoena by asking the court for the confidentiality order that FERPA seems to contemplate.
Thus, my conclusion: So while the prosecutors may be faulted for their exercise of prosecutorial discretion in issuing the records subpoena in the first place, I think their decision to seek the nondisclosure order is defensible, given the commands of FERPA.
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