Service of Subpoenas and Agency Requests for Information
Policy number: 1.9
Policy section: Institutional Affairs
Revised Date: January 2, 2019
1. Policy Statement
Federal and state laws govern current and former student and employee records, as well as requests for “public” information under the federal Freedom of Information Act (“FOIA”) and the Texas Public Information Act. The Office of Legal Affairs at SMU is responsible for determining the appropriate response to a subpoena or other request for information received by an SMU employee or faculty member relating to SMU business records.
2. Student Records
- All records maintained by any University department which pertain to current or former students are student records protected by the Family Educational Rights and Privacy Act of 1974, as amended (also known as FERPA or the Buckley Amendment). FERPA sets forth very strict guidelines which govern the University's release of student records to any person other than the student, without first obtaining the student’s prior written consent, or the student’s authorization of release of the student’s records through the Office of the Registrar in my.SMU.
- FERPA permits the release of student records under very limited circumstances, which include those records requested by a validly issued subpoena. It is important that no response indicating the existence (or non-existence) of student records pursuant to a subpoena served on any employee of the University be made without the advice and consent of the Office of Legal Affairs. The Office of Legal Affairs must determine whether the subpoena is validly issued and whether it meets the strict FERPA notice requirements to advise the current or former student of the subpoena, so that the student has an opportunity to raise objection to the subpoena with the issuing entity prior to the University's compliance.
- SMU Police Department incident reports are not protected under FERPA and are subject to information requests under the Texas Public Information Act. (see University Policy 9.10, Public Information Requests)
- Requests for student health records should be presented to the Dr. Bob Smith Memorial Health Center, which will coordinate the release of any student health or pharmacy records with the Office of Legal Affairs, and in accordance with University Policy 1.9, Privacy of Health Information (HIPAA).
3. Employee Records
Any subpoena requesting employment or payroll records or other information relating to current or former employees must be presented to the Office of Legal Affairs for review. Once the Office of Legal Affairs has verified that the subpoena is valid, it will coordinate compliance with the subpoena with appropriate SMU offices.
4. Requests for Records of Information under “FOIA” or the Texas Public Information Act
A request presented to the University by an individual or entity claiming a right to the information under the federal “Freedom of Information Act” or “FOIA” or under the Texas Public Information Act are generally declined. As a private institution, SMU is generally not subject to these requests and declines to provide any information under a FOIA request. However, please check with the Office of Legal Affairs to determine whether the request you receive is valid, and if any response is necessary. The Office of Legal Affairs will coordinate any response on behalf of SMU.
5. Refusal and Redirection of Service
If service is attempted on an employee related to records described in section 2 or section 3 of this policy, the employee should decline to accept service of the subpoena and redirect the process server to the Office of Legal Affairs during regular business hours. Nevertheless, if service of a subpoena is accepted contrary to this policy, the person accepting service shall immediately contact the Office of Legal Affairs so that all proper steps are taken to protect the University from liability for wrongful release of student, or employee records.
6. Federal and State Agency Requests
Various Federal and State agencies occasionally come onto campus seeking information through oral communication or access to files concerning particular students or employees. FERPA protects student records from this kind of "informal" disclosure. It is the University's policy to cooperate with all governmental agencies, but Federal law prohibits the University from cooperating in a manner that would violate FERPA, even when it is another Federal agency, or a state agency, requesting information. Please direct any representatives from state or federal agencies to the Office of Legal Affairs. The Office of Legal Affairs will review the request and any additional documents, and will coordinate the University’s response to the request.
For additional information, please contact the Office of Legal Affairs or reference these FAQs.
Revised: January 2, 2019
Adopted: January 18, 1999