Request By:
Mr. Charles D. Whitlock
Executive Assistant
Office of the President
Eastern Kentucky University
107 Coates Building
Richmond, Kentucky 40475-3101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of April 19, 1989, Neil G. Roberts, Assistant News Editor, The Eastern Progress, has appealed your April 17, 1989 denial of his April 14, 1989 request to inspect certain records related to the Eastern Kentucky University Student Disciplinary Board.
FINDINGS IN BRIEF
For reasons discussed below, we find Eastern Kentucky University acted consistent with the provisions of KRS 61.870 to 61.884. It promptly responded to a request to inspect public records, cited bases for denial consistent with the Kentucky Open Records Law, and forwarded a copy of its denial to the Attorney General's Office. We believe the basis for denial was correct, and therefore uphold same. Discussion follows.
FACTUAL BACKGROUND
By letter of April 14, 1989, Neil Roberts, Assistant News Editor of the Eastern Progress, requested:
". . . copies of the cases considered and the decisions rendered during the 1988-89 academic school year by the Student Disciplinary Board, a committee set up by Eastern Kentucky University to consider disciplinary action against students which may include expulsion or suspension from the University."
Mr. Roberts also requested copies of "any appeals of Disciplinary Board decisions made during the same time period," and specifically requested copies of records of Disciplinary Board action involving Derrick L. Duncan, who it was indicated, the Eastern Progress understood was dismissed from campus housing by the Disciplinary Board.
Mr. Roberts additionally asked that the letter be considered a standing request for records concerning the final actions of the Disciplinary Board.
By letter of April 17, 1989, you responded to Mr. Roberts' request, indicating it was your opinion as Custodian of Records that the material was excluded from access. You cited the fact that student records, except those identified as directory information, are prohibited from disclosure by the provisions of the Family Education and Privacy Act of 1974, Public Law 93-380, commonly referred to as the "Buckley Amendment. " You explained you were denying his request under the provision of the Open Records law which excepts from inspection except pursuant to court order, "all public records of (sic) information, the disclosure of which is prohibited or restricted by federal law or regulation." You also indicated the documents which had been requested contained information of a "personal nature," excluded from the open records law.
OPINION OF THE ATTORNEY GENERAL
In Opinion of the Attorney General (OAG) 80-471, this office concluded that since KRS 164.288 authorized state colleges or universities in Kentucky to accept federal funds, the Buckley Amendment has mandatory effect in Kentucky. We observed in that opinion that ". . . personally identifiable records pertaining to a student in a public school or university are confidential and, with certain exceptions . . . cannot be disclosed to the public or to another person without the student's consent."
In OAG 83-427 this office observed in part, regarding records concerning student discipline (at page 3): "Records of disciplinary proceedings are protected from public disclosure by KRS 61.878(1)(a). . . ."
Upon reconsideration of the above referenced opinions in connection with the questions involved here, we believe they are still correct.
The "Buckley Amendment" [codified at 20 U.S.C. 1232g], is binding upon Kentucky. KRS 164.288; OAG 80-471. It operates through KRS 61.878(1)(i) and (j), as authority for maintaining as confidential, records pertaining to student disciplinary actions.
Records pertaining to student discipline have not, under Kentucky law, been equated with records pertaining to actions of sworn police officers in relation to criminal statutes. Records pertaining to student discipline have long been recognized as confidential. The records sought here, involving possible discipline of a given student, are obviously of a personal nature to the student in question. Where, as noted, such records have long been recognized as confidential, release of them regarding a given student would constitute a clearly unwarranted invasion of that student's personal privacy. Accordingly, KRS 61.878(1)(a) is a proper basis for denial of inspection of the records in question.
Eastern Kentucky University promptly responded to a request to inspect records. It substantively stated, in terms consistent with KRS 61.878(1)(a), (i), and (j), though not identified as to provision number, the specific exceptions upon which it based its denial of inspection. It provided a brief explanation of how the exceptions applied to the records withheld, and forwarded a copy of its denial to the Attorney General. Accordingly, Eastern Kentucky University acted consistent with KRS 61.870 to 61.884.
We believe the "Buckley Amendment, " through KRS 61.878(1)(i) and (j), and KRS 61.878(1)(a), which was, in substance, invoked by the University, were proper bases for denial of inspection of the records in question. OAG 80-471; OAG 83-427.
As required by statute, a copy of this opinion is being forwarded to Mr. Neil Roberts, Assistant News Editor, The Eastern Progress. Mr. Roberts may have rights pursuant to KRS 61.880 to appeal the findings of this opinion to the appropriate circuit court.