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A discussion on JEA’s listserv earlier this week raised some significant questions about FOI requests to student media – and the importance of clarifying who owns the content of student media.

According to Mark Goodman, Knight Chair in Scholastic Journalism at Kent State University, that situation raised an important issue for all public school-sponsored student publication staffs to consider: Under virtually all state open records laws, most school-maintained records are public: anyone has the right to request them for any reason.

Although there may be exemptions for some records that would implicate personal privacy or reveal personally identifiable information about individual students and their academic performance, Goodman wrote,  many records, especially financial records are open to the public on request and that would include the financial records of your publication.

Note Goodman said school records.

“I maintain that a much different standard should apply to any documents relating to the content of your publications,” Goodman wrote.  “Although there is virtually no court precedent on this (and as each state’s open records law is different, so it would take a court case in each state to settle the matter), I think there is a compelling argument to be made the the First Amendment protects the journalistic work product of student publication student staff members, effectively exempting them from coverage of a state open records law.”

The key to making that argument work, Goodman said, is evidence that students,  not school officials (including the adviser), are determining the content of the publication.

Goodman shared a story about a state attorney general opinion on this issue involving a college student newspaper at the SPLC Web site.

“Here is yet another reason why a smart school will have a written policy stating that student editors make the content decisions for their publications,” Goodman wrote.  “If schools are dictating content, that creates the possibility that every e-mail a student publication staff member sends relating to his/her job, every story draft a student creates, every page layout they work on will be subject to an open records request to the school.  On the other hand, if the students are acting independently (even with the advice of a faculty adviser), I believe these open records laws should not and would not apply.”

Goodman also addressed another point: who owns the copyright to the works media students create.

“If your school is claiming ownership (legally questionable at best), that will certainly bolster any public records requests for access to the records as well,” he wrote.  “I’m a firm believer that student works belong to students, not necessarily to the individuals but to the student publication staff and NOT to the school.”

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