Request By:
Mr. John C. Darsie, Jr.
General Counsel
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested that we reconsider OAG 80-352 in which we ruled on an appeal under the Kentucky Open Records by Mr. Thomas L. Conn holding that statements made and data furnished by students applying for in-state residency are public records which are not exempt from public inspection under KRS 61.870-61.884. You raised two objections to our ruling -- (1) that the records are exempt from mandatory disclosure because of the privacy interest of the students involved and (2) the National Education Act of 1974.
In regard to the privacy exemption, KRS 61.878(1)(a), you state:
"First, with regard to the conclusion that the public interest in the administration of the policy on classification of students outweights the privacy rights of individuals who have applied for classification, I disagree. The committees on individual university campuses who are charged with making the initial determination as to student classifications for fee assessment purposes to implement the policies adopted by the Kentucky Council of Higher Education are essentially attempting to make a determination as to domicile. Thus, assuming physical presence in the state by the student requester they are faced with answering the question as to whether the student intends to remain here for an indefinite period of time without regard to his pursuits as a student. Since this is a highly subjective determination, and the student always insists that he has a fixed intention to remain, the committee must deal with many facts of a highly personal and sensitive nature. For example, the student's relationship with his parents may, and in many cases does, come into issue. In many other cases the student is required to give an exhaustive listing of his membership and affiliation with various organizations located in and out of the state. In addition, many students are required to divulge details of their personal finances including their ability to sustain themselves as residents of Kentucky without support from their parents or other contacts in other states. I certainly believe that the public disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. "
If we could agree that the criteria for determining domicile for the purpose of in-state tuition "is a highly subjective determination", we would be inclined to agree with your conclusions as to privacy, at least as far as any transcript of the hearing where the student divulged information about his family situation. However, the Policy on Classification of Students for Fee Assessment Purposes at State Supported Institutions of Higher Education promulgated by the Council on Public Higher Education, 1975, seems to us to set forth a more objective criteria. Section 5 of the Policy reads as follows:
"TYPES OF EVIDENCE TO BE CONSIDERED FOR ESTABLISHING DOMICILE
"If a person asserts that he has established domicile in Kentucky for a period of 12 months immediately preceding the last date for enrollment in an institution, he has the burden of proving he has done so. The following statements pertain to the kinds of evidence that will be considered in reviewing an ascertation by a person that he is domiciled in Kentucky.
(1) The following facts, although not conclusive, have probative value in support of a claim for resident classification: acceptance of an offer of permanent employment in this state; former residence in the state and the maintenance of significant connections therein while absent; or abandonment of a former domicile and establishing domicile in the state with attendance at an institution following and only an incident to such domicile.
The following facts are not necessarily sufficient evidence of domicile: employment by an institution as a fellow, scholar, assistant, or in any position normally filled by students; a statement of intention to acquire a domicile in this state; voting or registration for voting; the lease of living quarters; payment of local and state taxes; Kentucky automobile registration; Kentucky operator's license; continued presence in Kentucky during vacation periods; marriage to a Kentucky resident; or the owning of any real property."
If University Fee Committees are following additional standards than those set forth in the policy and if the standard is mainly subjective, that is what the public would like to know. A private individual dealing with a bureaucracy wants to know what the standards of the bureau are and wants to know that they are equally observed. In Privacy: Personal Data and the Law, National Association of Attorneys General, 1976, page 8, it is stated:
"A government premised on consent of the governed cannot carry out its activities in secret and at the same time remain accountable to the public. Most states accordingly have statutes making the records of government activities available to the public, and the value of openness in government has led to the adoption at the federal level of the Freedom of Information Act. Where the records of government dealings with individuals, the public's "right to know" and the individual's interest in controlling disclosure of information about himself may come into conflict."
One way to avoid a conflict between the public's right to know and the individual's interest in privacy is for the bureaucracy to limit its accumulation of personal data as much as possible. A report by the Department of Health, Education and Welfare described government records containing information about individuals as consisting of three types: administrative records, intelligence records and statistical records. Id. p. 9. Administrative records are usually self-reported or gathered through open inspection of public acts of the subject. Id. Administrative records are normally accessible to the public. Id. "Even where disclosure is not compelled, benefits of critical importance to the individual may be conditioned on divulgence of personal data so that the self-reporting is less than 'voluntary' in the full sense of the word." Id.
The records which were the subject of OAG 80-352 were described as follows:
"All statements as to residency and other non-academic documents submitted to the University of Kentucky Fees Committee by students contesting residency classifications based on application of the 'policy on classification of students for fee assessment purposes at state supported institutions of higher education' as adopted July 1, 1975 by the Commonwealth of Kentucky Council on Public Higher Education."
The records just described are self-reported administrative records. No mention is made of transcripts of oral testimony before the committee and we have no knowledge of whether such transcripts are made. We did not deal in OAG 80-352, and we are not dealing in this opinion, with the question of oral testimony before the committee. We fully recognize that the documents requested are personal and contain private data, but we are still of the opinion that the public's interest in the fair administration of the residency classification outweighs the privacy interest of the students.
Your other objection to permitting public inspection of subject records is stated as follows:
"Second, I am of the opinion that classification of the preceedings of the residency review committees as public records would bring our colleges and universities into conflict with the Family Educational Rights and Privacy Act. (Section 513 of Pub. Law 93-380 as amended by Section 2 of Public Law 93-568). The final regulations of the Department of Health, Education and Welfare, implementing the above act are published in Volume 41, No. 118 of the Federal Register (June 17, 1976). In general, these regulations prevent the disclosure of the education records of students (a term which is broadly defined to mean almost any record pertaining to a student which is in the possession of the institution) with the exception of so-called 'directory information'. As is usual these with Federal acts dealing with educational institutions, Section 99.64 of the regulations provides for the termination of all funds under various Federal programs if the institution does not comply."
The federal act you mention, popularly called the Buckley Amendment, puts in issue KRS 61.878(1)(i) which exempts from mandatory disclosure "all public records or information the disclosure of which is prohibited by federal law or regulation" .
The Buckley Amendment does not prohibit the disclosure of a student's records, it only provides that federal funds will not be given to a school which discloses such records. However, KRS 164.288 authorizes state colleges or universities to accept federal funds. We therefore conclude that the Buckley Amendment has mandatory effect in Kentucky. This means that the personally identifiable records pertaining to a student in a public school or university are confidential and, with certain exceptions which do not apply here, cannot be disclosed to the public or to another person without the student's consent.
In OAG 80-352, we were dealing with a situation where the requester, Mr. Conn, requested to see records pertaining to Ms. Maura Farley and presented a written authorization from Ms. Farley. In issuing our opinion we dealt with the matter generally from the standpoint of privacy versus public interest and gave no consideration to the Buckley Amendment. Upon reconsideration, we believe that Mr. Conn should be allowed to inspect Ms. Farley's records because he has her written authorization to do so. We further conclude that we should modify OAG 80-352 by withdrawing any statement in that opinion which indicates that the University of Kentucky must make available for public inspection records concerning residency classification of students generally and the records pertaining to any particular student without that particular student's authorization.
In summary, under the Buckley Amendment the records of students pertaining to residency classification are exempt from public inspection under KRS 61.878(1)(i) because disclosure of the records is prohibited by federal law unless the student who is the subject of the records gives his authorization that they be disclosed to a particular person or persons. OAG 80-352 is modified accordingly.