Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration and
Official Records Custodian
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: David L. Armstrong, Attorney General;By: Thomas R. Emerson, Assistant Attorney General
Mr. Kit Wagar, Staff Writer for the Lexington Herald-Leader newspaper, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He described the records in question as all records maintained by the University regarding Andrew Carter Thornton, II who died September 11, 1985, including but not limited to his original enrollment application, scholastic transcripts and law school application, including attachments.
In your letter to Mr. Wagar, dated October 14, 1985, you advised him that he could not inspect the records requested in the absence of a written release signed by the deceased's parents. Since no such signed release has been received by the University the request to inspect was denied pursuant to the provisions of KRS 61.878(1)(a), (i), and (j). The subsections cited deal with exemptions to public inspection where public disclosure would constitute a clearly unwarranted invasion of personal privacy, where the disclosure of public records is prohibited by federal law or regulation and where the disclosure of public records is prohibited by an enactment of the Kentucky General Assembly. You referred to 20 USC 1232(g) as the applicable federal provision and KRS 164.283 as the applicable enactment of the General Assembly.
In his letter of appeal to this office Mr. Wagar maintains that his request to inspect does not constitute an invasion of privacy because Andrew Thornton is deceased. He cites prior opinions of this office to the effect that the right of privacy terminates at the time of a person's death. He further maintains that disclosure is not prohibited by federal law. He also states that you did not respond to his request letter within the time period set forth in the statute.
OPINION OF THE ATTORNEY GENERAL
In connection with the public agency's duty to respond to a request to inspect public records, KRS 61.880(1) provides in part that the public agency shall determine within three days (excepting Saturdays, Sundays and legal holidays) after the receipt of such request whether to comply with the request, and shall notify the requesting party in writing within the three day period of its decision. The University in this situation did not adhere to the time requirement set forth in the statute.
As to the question of whether the University properly denied the request to inspect, we must examine the provisions of KRS 61.878(1)(i) and (j). Those statutory subsections provide that among the public records excluded from public inspection in the absence of a court order authorizing inspection are the following:
"(i) All public records or information the disclosure of which is prohibited by federal law or regulation;
"(j) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
20 USCA § 1232g.(b)(1) provides as follows:
"No funds shall be made available under any applicable program to any educational agency or institution which has a policy of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . ."
This provision applies to a university which is the recipient of federal funds and, furthermore, there is nothing in the subsequent provisions of 20 USCA1232g.(b)(1) authorizing the release of the records requested by Mr. Wagar. Thus any university receiving federal funds is restricted in connection with the release of educational records.
KRS 164.283(2) applicable to public supported colleges and universities in this state provides as follows:
"All student academic records shall be confidential, with the exception of the exemptions stated in subsection (3) to (9) of this section, and shall not be released by any public supported institution of higher education in Kentucky, to any person, organization, institution, group or agency, except with the express consent of the individual student. This confidentiality shall apply only to student academic records, including, but not limited to official transcript of grades."
While this Office has stated in OAG 82-590, copy enclosed, and other opinions, that the right of privacy is a personal one ending with the death of the person involved, those opinions are not inconsistent or in conflict with the University's denial of the request to inspect public records in this situation. Those privacy opinions did not involve specific federal and state statutory provisions dealing with the confidentiality of particular types of records. The exemptions to public inspection in this situation are based upon federal and state enactments dealing with education records rather than the general privacy exemption of the state's Open Record Law.
The federal and state statutes involved here relative to school records do not exclude from their coverage situations where the student may have died. The federal statute refers to educational records while the state statute refers to all student academic records. We cannot read into those statutes exemptions or exceptions which do not exist.
Thus, it is the opinion of the Attorney General that your denial of the request to inspect records of a former student, now deceased, including that student's application for admission and, scholastic transcripts, where no parental consent has been obtained, was proper under the Open Records Act [KRS 61.878(1)(i) and (j)] and applicable state and federal statutes pertaining to the confidentiality of such records.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Kit Wagar, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).