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SBHE Policies

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SUBJECT: 1900s: Miscellaneous EFFECTIVE: September 28, 2017
Section: 1912 Public Records

Except as otherwise specifically provided by law or this policy, all records of the State Board of Higher Education, the North Dakota University System and its institutions are, pursuant to N.D.C.C. Section 44-04-18, public records, open and accessible for inspection during regular office hours.

  1. Student education records are confidential and access to those records is restricted according to the Family Education Rights and Privacy Act of 1974, as amended (FERPA). Pursuant to FERPA, each institution shall:

    1. Adopt a policy as required by 34 CFR Section 99.7;

    2. Annually notify students currently in attendance of their rights under FERPA;

    3. Except as provided under FERPA and 34 CFR Section 99.31, relating to conditions under which personally identifiable information may be disclosed without consent, obtain a signed and dated written consent of a student before it discloses personally identifiable information from the student's education records;

    4. Maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student as required by 34 CFR Section 99.32;

    5. Provide the notice required by 34 CFR Section 99.37 concerning disclosure of directory information;

    6. Adopt procedures implementing FERPA provisions governing release and transfer of student disciplinary records. Consistent with FERPA, student disciplinary records are confidential and may be released only as permitted under FERPA and implementing institution procedures; and,

    7. Comply with all other requirements of FERPA and applicable regulations.

  2. The chancellor shall adopt a procedure establishing a uniform, system definition of directory information, which must be incorporated in required institution policies and apply to the system office.

  3. Records of former students, including deceased former students, are confidential except that records of deceased former students may be released or disclosed at the request of a parent, personal representative, or other qualified representative of the student's estate, or pursuant to a court order or subpoena.

  4. Access to and disclosure of campus police records is governed by N.D.C.C. Section 44-04-18.7. Accordingly, active criminal intelligence information and active criminal investigative information are exempt from the open records law. Each campus law enforcement agency shall maintain a list of all files containing active criminal intelligence and investigative information which have been in existence for more than one year, which shall be subject to disclosure under N.D.C.C. Section 44-04-18.

    1. Campus police records which are open and must be disclosed under Section 44-04-18.7 include:
      1. Arrestee description;
      2. Facts concerning the arrest;
      3. Conviction information;
      4. Disposition of all warrants;
      5. A chronological list of incidents, including initial offense report information;
      6. A crime summary, including a departmental summary of crimes reported and public calls for service;
      7. Radio log; and
      8. General registers.

    2. Law enforcement records and files concerning a child, as that term is defined at N.D.C.C. ch. 27-20, shall be kept separate from the records and files of adults and shall not be open to public inspection and may not be disclosed except according to the provisions of N.D.C.C. ch. 27-20.

    3. Records of undercover law enforcement officers are confidential and exempt from the open records law as provided by N.D.C.C. Section 44-04-18.3.

  5. Public entities including the State Board of Higher Education and NDUS institutions shall determine finalists for open positions consistent with N.D.C.C. Section 44-04-18.27. Applications for public employment of non-finalists and any records related to those applications which contain information that could reasonably be used to identify an applicant are confidential.

  6. Personnel records other than personnel records that relate to an individual in attendance at the agency or institution and employed as a result of his or her status as a student are public records open to inspection by the public. However, pursuant to N.D.C.C. Section 44-04-18.1, employee medical and employee assistance program records are confidential and may not be placed in an employee's personnel file and may not be released without the written consent of the employee or as otherwise provided by law. Further, personal information as defined in section 44-04-18.1, including a person's home address, home telephone number, photograph, medical information, motor vehicle operator's identification number, payroll deduction information, the name, address, phone number, date of birth of any dependent or emergency contact, any credit, debit, or electronic fund transfer card number, and any account number at a bank or other financial institution, are exempt from the open records law and may be released only as required by law, pursuant to institution policy or with the employee's written consent. The chancellor shall adopt a procedure establishing a uniform, system policy concerning release of exempt personal information, which must be incorporated in required institution procedures and apply to the system office. Placement of documents in an employee's personnel file is governed by N.D.C.C. Section 54-06-21.

  7. Additional records exempt from or confidential under the open records law include (without limitation):

    1. Information pertaining to an employee's retirement account balance, disability applications and benefits, and surviving spouse applications and benefits under N.D.C.C. ch. 54-52 or a plan adopted by the board (N.D.C.C. Section 54-52-26);

    2. Certain economic development records (N.D.C.C. Section 44-04-18.2);

    3. Trade secret, proprietary, commercial and financial information (N.D.C.C. Section 44-04-18.4 and SBHE Policy 611.6), including university research records and personally identifiable study information;

    4. Computer software programs or components for which a copyright, patent or license is acquired (N.D.C.C. Section 44-04-18.5);

    5. Attorney work product (N.D.C.C. Section 44-04-19.1);

    6. Social security numbers, which are confidential under N.D.C.C Section 44-04-28; and

    7. Title IX records at state universities and colleges (N.D.C.C. Section 44-04-18.28).

  8. Copies of records not exempt from section 44-04-18 shall be provided upon request. Copies shall be made of records and documents in the form filed or kept in the normal course of business and employees are not required to retrieve and collate or summarize data or prepare other special reports or documents not required by law or otherwise prepared in the normal course of business. A fee for allowing access to documents may not be assessed; however, each institution shall establish and collect a fee to cover reasonable copying costs, including reasonable costs of computer generated documents. The fee for standard paper copies may not exceed twenty-five cents per copy as provided under section 44-04-18. A fee not to exceed twenty-five dollars per hour, excluding the first hour, may be charged per request for locating records if locating the records requires more than one hour or for excising confidential or closed material if excising the material requires more than one hour. Access to electronically stored records is free if the records are recoverable without the use of a computer backup; if a request is made for access to a record on a backup or for a copy of an electronically stored record, an additional reasonable fee may be charged to cover costs attributable to the use of information technology resources.

  9. The university system office and each institution shall maintain a continuing program for the management of records as required by N.D.C.C. ch. 54-46 using the North Dakota Colleges/Universities General Records Retention Schedule maintained and updated by the ND Information Technology Department and as supplemented by institution specific retention schedules maintained by individual institutions. Records received or created by Board members are governed by the system office program.

  10. The North Dakota University System (NDUS) and its institutions shall immediately implement litigation hold procedures when they are involved in litigation or it is reasonably foreseen that they may become involved in litigation. A litigation hold is the process of identifying and preserving materials that may be relevant to the litigation, including documents, electronic information, and other items.

  11. The chancellor shall adopt a procedure implementing provisions of the Financial Services Modernization Act of 1999 (Gramm Leach Bliley Act).

Reference: NDUS Procedure - 1912  

New policy. SBHE, October 22, 1992.
SBHE Amendment, January 15, 1998.
SBHE Amendment, May 21, 1998.
SBHE Amendment, November 21, 2002.
SBHE Amendment, December 16, 2004.
SBHE Amendment, June 16, 2005.
SBHE Amendment, November 20, 2014 (the amendment to paragraph 7 was effective March 1, 2015).
SBHE Amendment, September 28, 2017.
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