A must read for anyone struggling to understand the Family Educational Rights and Privacy Act ("FERPA") and it's misuse and abuse by educational institutions, including some notable Kentucky public universities.
This article recounts how a law enacted in 1974 for the salutary purpose of protecting student privacy has been bastardized by these Kentucky universities to avoid accountability and evade their duty of candor to the public.
As one who personally observed the erosion of the public's right to know under the guise of protecting student privacy, I believe that the origins of FERPA's misuse and abuse in Kentucky can be traced to a 2012 open records decision.
The attorney general affirmed, albeit very reluctantly, the University of Kentucky's denial of a UK Kernel request for records relating to the NCAA investigation of basketball recruit Nerlens Noel. The university maintained that the records were "education records" shielded from disclosure by FERPA.
As was, and is, his practice in cases of doubt, the attorney general asked to confidentially review the disputed record under a statutory grant of authority in the open records law.
UK refused to provide copies of the records to the Kentucky AG to substantiate its position based on its expansive reading of FERPA and a 2006 letter to the Texas Attorney General from the US Department of Education's Family Policy Compliance Office. In that letter, the federal office opined that a school could not, under that state's law, share records with the Texas AG for purposes of resolving an open records dispute.
(Its interesting that the same federal agency ignored the Kentucky attorney general's 2008 request for guidance on the same issue under Kentucky's wholly dissimilar open records law. The AG's unsuccessful efforts to obtain guidance under his statutory mandate — as opposed to the Texas AG's substantially different mandate — are recounted in note 8 of the 2012 open records decision. The decision also contains valuable links to additional articles that are critical of university abuses of FERPA, including one by the federal law's sponsor, Senator James Buckley, who became one of its harshest detractors.)
https://ag.ky.gov/orom/20121/12ORD220.doc
Traditionally, the Kentucky AG would, in these cases, determine that the uncooperative agency failed to meet its statutorily assigned burden of proof and issue a decision in the requester's favor.
In the 2012 case involving Nerlens Noel, one of many matters under NCAA investigation was his academic eligibility for a scholarship. Additionally, in a 2012 opinion, an Ohio court had just ruled that records relating to an NCAA investigation of student athletes were education records protected by FERPA. Weighing a doubt against an apparent certainty, the Kentucky AG affirmed UK's position, assigning far too much weight to its "professed appreciation for the value of transparency."
The AG reproachfully noted that in the Ohio case the university provided the requester with 700 documents while UK provided The Kernel with none.
From that point, UK "took the ball and ran with it," regularly refusing to honor the attorney general's statutory requests to confidentially review disputed records up to and including The Kernel's 2016 request for records relating to student allegations of sexual misconduct by Professor James Harwood. The Kentucky Court of Appeals recently issued an opinion affirming the public's right to redacted copies of those records.
(UK filed a petition for rehearing — modification and extension of opinion — in that case on June 5.)
https://ag.ky.gov/orom/2016/16ORD161.doc
In the meantime the rhetoric emanating from the hallowed halls of academia ratcheted up, the office of general counsel displaying unfeigned contempt for the Office of the Kentucky Attorney General and his statutory role under the open records law in a series of subsequent appeals.
And, as noted in previous posts, two other universities — Western Kentucky University and Kentucky State University — not to mention many other public agencies, followed suit.
The attorney general intervened in the student newspapers' cases to preserve his office's statutory right to confidentially review disputed records in an open records appeal, and the Court of Appeals admonished UK for refusing to comply with his request.
(What, we must ask, will become of this important legal question if UK seeks review in the Supreme Court or if the issue in the companion case at WKU is resolved against the AG (as it originally was in the UK case by the Fayette Circuit Court). Will the next AG pursue the litigation and defend his role under the open records law with the same commitment?)
For now, we are left with an endorsement by the appellate courts of the public's right to know in the face of unfounded FERPA claims. But a long road lies ahead for The Kernel, The College Heights Herald, and the attorney general in their efforts to repudiate "institutional stonewalling" and vindicate the open records law.
