Emails of Cherien Abou-harb

Hayden Barnes, Esq. filed this request with the University of Georgia of Georgia.
Est. Completion None
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Awaiting Response

Communications

From: Hayden Barnes, Esq.

To Whom It May Concern:

Pursuant to the Georgia Open Records Act, I hereby request the following records:

All emails received by staff and faculty of University of Georgia from the student email account of University of Georgia student Cherien Abou-harb from March 1, 2017 through March 1, 2018.

Student documents that are not placed in a central records repository are not protected by The Family Educational Rights and Privacy Act (FERPA). Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433, 122 S. Ct. 934, 939, 151 L. Ed. 2d 896 (2002).

Courts relying on Owasso have found that student emails are not protected by FERPA. S.A. v. Tulare County Office of Education, 2009 Westlaw 3126322 (E.D.Cal).

The documents requested will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.

Sincerely,

Hayden Barnes, Esq.

From: University of Georgia

Mr. Barnes-

This is in response to your March 29, 2018 request for documents under the Georgia Open Records Act.

With respect to your request for "all emails received by staff and faculty of University of Georgia from the student email account of University of Georgia student Cherien Abou-harb from March 1, 2017 through March 1, 2018," material sought via this request is exempt from disclosure in accordance with O.C.G.A. § 50-18-72(a)(1) and (37), specifically the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99).

Regards,

Bob Taylor
Division of Marketing & Communications
Open Records Manager/UGAPD Media Relations
Hodgson Oil Building, Suite 200 N | 286 Oconee St. | Athens, GA 30602
706-542-8090 | btaylor@uga.edu<mailto:btaylor@uga.edu> | www.uga.edu<http://www.uga.edu/>
[University of Georgia]
[Facebook]<https://www.facebook.com/uga.edu> [Twitter] <https://twitter.com/universityofga> [Instagram] <https://www.instagram.com/universityofga/> [Linkedin] <https://www.linkedin.com/edu/school?id=18190> [Youtube] <https://www.youtube.com/uga> [Snapchat] <https://www.snapchat.com/add/university-ga>

From: Hayden Barnes, Esq.

Mr. Taylor,

I ask that you confer with University General Counsel and promptly reconsider the University's decision in this matter.

As I explained in my initial request, the Supreme Court has ruled that documents kept outside a student's official educational file are not protected by FERPA. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433, 122 S. Ct. 934, 939, 151 L. Ed. 2d 896 (2002). The courts have, citing Owasso, ruled that e-mails in particular, due to their fleeting nature, are not protected by FERPA unless they are purposefully placed in a students' official educational file. S.A. v. Tulare County Office of Education, 2009 Westlaw 3126322 (E.D.Cal).

It is odd that this case comes as a surprise to you, as the Tulare County decision was well-publicized in FERPA compliance resources, see http://archive.is/vGu7n and http://archive.is/z9Sev. UGA’s own "Security and Privacy for Email and Messaging Systems” policy concurs, stating "Messages are public records owned by the state and are subject to Open Records disclosure.”, see http://archive.is/lfS0r.

I will provide the University of Georgia with two additional business days to provide the requested records. You should also consider the Georgia Supreme Court's recent history of strict interpretation of the Open Records Act against state agencies, the opportunity to secure attorneys fees and costs in a prevailing Open Records Act action, and my history of successfully litigating against the University system.

Thank you,

Hayden Barnes
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579

From:

Begin forwarded message:

From:

Mr. Raeber,

I appreciate your willingness to consider the University's position and look forward to prompt fulfillment of my request.

In addition to the two cases and FERPA guidance I previously highlighted, I would to call your attention and the AG’s office to the following additional caselaw interpreting FERPA on this issue:

1. S.B. v. San Mateo Foster City Sch. Dist., No. 16-CV-01789-EDL, 2017 WL 4856868, at *18 (N.D. Cal. Apr. 11, 2017);
2. Jacobson v. Ithaca City Sch. Dist., 53 Misc. 3d 1091, 1094, 39 N.Y.S.3d 904, 908 (N.Y. Sup. Ct. 2016);
3. E.D. by & through T.D. v. Colonial Sch. Dist., No. CV 09-4837, 2017 WL 1207919, at *10 (E.D. Pa. Mar. 31, 2017);
4. Weston ex rel. C.S. v. Kansas City, Mo. Sch. Dist., No. 07-0229-CV-W-HFS, 2011 WL 5513207, at *2 (W.D. Mo. Nov. 10, 2011);
5. Red Lion Area Sch. Dist.,112 LRP 2720 (Penn. 2011); and
6. Washoe County Sch. Dist., 114 LRP 25728 (Nevada May 23, 2014).

As you and the AG’s office will see upon review, the case law on this issue is unanimously in favor of disclosure.

Thank you,

Hayden Barnes
Law Office of Hayden Barnes, LLC
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579
hayden@rivertownlawyer.com
https://rivertownlawyer.com

From: Hayden Barnes, Esq.

Mr. Barnes: We are communicating with the Office of the Attorney General concerning your request and will respond to your email once we have received further guidance.

Best regards.

Mike

Michael M. Raeber
General Counsel | Office of Legal Affairs
Lustrat House | 230 S. Jackson St. | Athens, GA 30602-1693
706-542-0006 | mraeber@uga.edu

  • Georgia20Open20Records20Act20Request20Emails20of20Cherien20Abouharb2018169.pdf

From: Hayden Barnes, Esq.

Mr. Raeber,

I appreciate your willingness to consider the University's position and look forward to prompt fulfillment of my request.

In addition to the two cases and FERPA guidance I previously highlighted, I would to call your attention and the AG’s office to the following additional caselaw interpreting FERPA on this issue:

1. S.B. v. San Mateo Foster City Sch. Dist., No. 16-CV-01789-EDL, 2017 WL 4856868, at *18 (N.D. Cal. Apr. 11, 2017);
2. Jacobson v. Ithaca City Sch. Dist., 53 Misc. 3d 1091, 1094, 39 N.Y.S.3d 904, 908 (N.Y. Sup. Ct. 2016);
3. E.D. by & through T.D. v. Colonial Sch. Dist., No. CV 09-4837, 2017 WL 1207919, at *10 (E.D. Pa. Mar. 31, 2017);
4. Weston ex rel. C.S. v. Kansas City, Mo. Sch. Dist., No. 07-0229-CV-W-HFS, 2011 WL 5513207, at *2 (W.D. Mo. Nov. 10, 2011);
5. Red Lion Area Sch. Dist.,112 LRP 2720 (Penn. 2011); and
6. Washoe County Sch. Dist., 114 LRP 25728 (Nevada May 23, 2014).

As you and the AG’s office will see upon review, the case law on this issue is unanimously in favor of disclosure.

Thank you,

Hayden Barnes
Law Office of Hayden Barnes, LLC
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579
hayden@rivertownlawyer.com
https://rivertownlawyer.com

  • Georgia20Open20Records20Act20Request20Emails20of20Cherien20Abouharb2018169_UhhbSYX.pdf

From: University of Georgia

Mr. Raeber,

I would appreciate an update and timeline on the status of my request.

Thank you,

Hayden Barnes
Law Office of Hayden Barnes, LLC
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579
hayden@rivertownlawyer.com
https://rivertownlawyer.com
Sent from my iPad

From:

Mr. Barnes-

Thank you for your follow-up email below and for the additional information provided in your email to our Open Records Manager on April 6, 2018. Please know that we consider our obligations under the Open Records Act with the utmost care and seriousness. Notwithstanding your interpretation of the case law you have provided, we continue to hold the position that the records you seek are exempt from production based upon O.C.G.A. § 50-18-72(a)(1) and (37). We have discussed your request with the Attorney General's office, and have reviewed the relevant law, regulations, and case law, including the additional cases you provided. Our position on the release of the records remains the same.

Sincerely,

Brooke Savage
Assistant General Counsel
University of Georgia
Lustrat House
Athens, Georgia 30602
Phone: 706.542.0006
Email: B.Savage@uga.edu


On 4/12/18, 8:40 PM, "Hayden Barnes" <hayden@rivertownlawyer.com> wrote:

Mr. Raeber,

I would appreciate an update and timeline on the status of my request.

Thank you,

Hayden Barnes
Law Office of Hayden Barnes, LLC
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579
hayden@rivertownlawyer.com
https://rivertownlawyer.com

Sent from my iPad


> On Apr 6, 2018, at 9:41 AM, Hayden Barnes <hayden@rivertownlawyer.com> wrote:
>
> Mr. Raeber,
>
> I appreciate your willingness to consider the University's position and look forward to prompt fulfillment of my request.
>
> In addition to the two cases and FERPA guidance I previously highlighted, I would to call your attention and the AG’s office to the following additional caselaw interpreting FERPA on this issue:
>
> 1. S.B. v. San Mateo Foster City Sch. Dist., No. 16-CV-01789-EDL, 2017 WL 4856868, at *18 (N.D. Cal. Apr. 11, 2017);
> 2. Jacobson v. Ithaca City Sch. Dist., 53 Misc. 3d 1091, 1094, 39 N.Y.S.3d 904, 908 (N.Y. Sup. Ct. 2016);
> 3. E.D. by & through T.D. v. Colonial Sch. Dist., No. CV 09-4837, 2017 WL 1207919, at *10 (E.D. Pa. Mar. 31, 2017);
> 4. Weston ex rel. C.S. v. Kansas City, Mo. Sch. Dist., No. 07-0229-CV-W-HFS, 2011 WL 5513207, at *2 (W.D. Mo. Nov. 10, 2011);
> 5. Red Lion Area Sch. Dist.,112 LRP 2720 (Penn. 2011); and
> 6. Washoe County Sch. Dist., 114 LRP 25728 (Nevada May 23, 2014).
>
> As you and the AG’s office will see upon review, the case law on this issue is unanimously in favor of disclosure.
>
> Thank you,
>
> Hayden Barnes
> Law Office of Hayden Barnes, LLC
> 233 12th Street, Suite 745E
> Columbus, GA 31901
> 706-530-0529
> Fax 706-553-4579
> hayden@rivertownlawyer.com
> https://rivertownlawyer.com
>
>
> On Apr 6, 2018, at 8:30 AM, Michael Raeber <mraeber@uga.edu> wrote:
>>
>> Mr. Barnes: We are communicating with the Office of the Attorney General concerning your request and will respond to your email once we have received further guidance.
>>
>> Best regards.
>>
>> Mike
>>
>> Michael M. Raeber
>> General Counsel | Office of Legal Affairs
>> Lustrat House | 230 S. Jackson St. | Athens, GA 30602-1693
>> 706-542-0006 | mraeber@uga.edu
>> <image001.png>
>>
>>
>>
>> From: Hayden Barnes <hayden@rivertownlawyer.com>
>> Date: Wednesday, April 4, 2018 at 5:28 PM
>> To: UGA Open Records Request <ugaopenrecordsrequest@uga.edu>, Michael Raeber <mraeber@uga.edu>
>> Subject: Re: Georgia Open Records Act Request: Emails of Cherien Abou-harb (18-169)
>>
>> Mr. Taylor,
>>
>> I ask that you confer with University General Counsel and promptly reconsider the University's decision in this matter.
>>
>> As I explained in my initial request, the Supreme Court has ruled that documents kept outside a student's official educational file are not protected by FERPA. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433, 122 S. Ct. 934, 939, 151 L. Ed. 2d 896 (2002). The courts have, citing Owasso, ruled that e-mails in particular, due to their fleeting nature, are not protected by FERPA unless they are purposefully placed in a students' official educational file. S.A. v. Tulare County Office of Education, 2009 Westlaw 3126322 (E.D.Cal).
>>
>> It is odd this case comes as a surprise to you, as the Tulare County decision was well-publicized in FERPA compliance resources, see http://archive.is/vGu7n and http://archive.is/z9Sev. UGA’s own "Security and Privacy for Email and Messaging Systems” policy concurs, stating "Messages are public records owned by the state and are subject to Open Records disclosure.”, seehttp://archive.is/lfS0r.
>>
>> I will provide the University of Georgia with two additional business days to provide the requested records. You should also consider the Georgia Supreme Court's recent history of strict interpretation of the Open Records Act against state agencies, the opportunity to secure attorneys fees and costs in a prevailing Open Records Act action, and my history of successfully litigating against the University system.
>>
>> Thank you,
>>
>> Hayden Barnes
>> Law Office of Hayden Barnes, LLC
>> 233 12th Street, Suite 745E
>> Columbus, GA 31901
>> 706-530-0529
>> Fax 706-553-4579
>> hayden@rivertownlawyer.com
>> https://rivertownlawyer.com
>>
>
> On Apr 4, 2018, at 4:50 PM, UGA Open Records Request <ugaopenrecordsrequest@uga.edu> wrote:
>> Mr. Barnes—
>>
>> This is in response to your March 29, 2018 request for documents under the Georgia Open Records Act.
>>
>> With respect to your request for “all emails received by staff and faculty of University of Georgia from the student email account of University of Georgia student Cherien Abou-harb from March 1, 2017 through March 1, 2018,” material sought via this request is exempt from disclosure in accordance with O.C.G.A. § 50-18-72(a)(1) and (37), specifically the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99).
>>
>> Regards,
>>
>> Bob Taylor
>> Division of Marketing & Communications
>> Open Records Manager/UGAPD Media Relations
>> Hodgson Oil Building, Suite 200 N | 286 Oconee St. | Athens, GA 30602
>> 706-542-8090 | btaylor@uga.edu | www.uga.edu
>> <image001.png>
>> <image002.png> <image003.png> <image004.png> <image005.png> <image006.png> <image007.png>
>>
>>
>> From: requests@muckrock.com <requests@muckrock.com>
>> Sent: Thursday, March 29, 2018 9:15 PM
>> To: UGA Open Records Request <ugaopenrecordsrequest@uga.edu>
>> Subject: Georgia Open Records Act Request: Emails of Cherien Abou-harb
>> University of Georgia
>> ORA Office
>> Suite 200N
>> 286 Oconee Street
>> Athens, GA 30602
>> March 29, 2018
>> To Whom It May Concern:
>> Pursuant to the Georgia Open Records Act, I hereby request the following records:
>> All emails received by staff and faculty of University of Georgia from the student email account of University of Georgia student Cherien Abou-harb from March 1, 2017 through March 1, 2018.
>> Student documents that are not placed in a central records repository are not protected by The Family Educational Rights and Privacy Act (FERPA). Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433, 122 S. Ct. 934, 939, 151 L. Ed. 2d 896 (2002).
>> Courts relying on Owasso have found that student emails are not protected by FERPA. S.A. v. Tulare County Office of Education, 2009 Westlaw 3126322 (E.D.Cal).
>> The documents requested will be made available to the general public, and this request is not being made for commercial purposes.
>> In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
>> Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.
>> Sincerely,
>> Hayden Barnes, Esq.
>> Filed via MuckRock.com
>> E-mail (Preferred): requests@muckrock.com
>> Upload documents directly: https://www.muckrock.com/accounts/agency_login/university-of-georgia-4325/emails-of-cherien-abou-harb-51955/?uuid-login=5cd97095-148c-4edc-a619-f10bc62e7002&email=ugaopenrecordsrequest%40uga.edu#agency-reply
>> Is this email coming to the wrong contact? Something else wrong? Use the above link to let us know.
>> For mailed responses, please address (see note):
>> MuckRock News
>> DEPT MR 51955
>> 411A Highland Ave
>> Somerville, MA 02144-2516
>> PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better track, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable.
>

From: University of Georgia

Ms. Savage,

Are you willing to share any of your legal substantiation for your position?

Sincerely,

Hayden Barnes
Law Office of Hayden Barnes, LLC
233 12th Street, Suite 745E
Columbus, GA 31901
706-530-0529
Fax 706-553-4579
hayden@rivertownlawyer.com
https://rivertownlawyer.com

From: University of Georgia

Mr. Barnes:

The Georgia Open Records Act does not require an agency to respond to questions about documents or otherwise provide explanations about its responses. We stand by our previous response sent to you on April 13, 2018. If you disagree, you are free to communicate with the Office of the Attorney General.

Sincerely,

Brooke Savage

From: University of Georgia

Ms. Savage,

It’s one thing to use FERPA to cover up fraternity misconduct, but does UGA really want to be in the position of appearing to hide whether university resources are being used by outspoken anti-semites and Islamic terrorist sympathizers for recruitment?

Against the weight of published case law on this issue?

Sincerely,

Hayden Barnes

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