Request By:
Kimberly K. Greene, Esq.
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your recent letter concerns the interpretation and application of the Kentucky Open Meetings Act (KRS 61.805 to KRS 61.850) and the exclusion of a reporter for The Courier-Journal from a closed meeting held by a committee of the University of Louisville Board of Trustees.
The Board of Trustees has appointed a committee to study the University's academic standards for student athletes. This committee met on October 24, 1990 in a closed session and prohibited a reporter for your client-newspaper from attending that meeting. You state that one committee member said the meeting focused "on anything and everything we can do to help our student-athletes improve their graduation rates." You relate that another committee member said the committee is "looking at the total picture" and "brainstorming ideas."
According to your letter the committee has interviewed the University's football coach, the athletic director, the vice president for student affairs, the basketball coach, the director of athletic academic counseling and the chairman of the academic performance committee. At future meetings the committee plans to interview, among others, various student athletes.
You maintain that the University's reasons for denying access to the meeting to your client's reporter are not applicable and that the University has violated the Kentucky Open Meetings Act. You take exception to the University's reliance upon KRS 61.810(6) and (10) and the so-called Federal Buckley Amendment. Cited in your letter is the case of Frasca v. Andrews, 463 F. Supp. 1043 (E.D. N.Y. 1979).
The committee is, of course, a public agency (KRS 61.805 (2)) as the term was defined in Lexington Herald-Leader v. University of Kentucky, Ky., 732 S.W.2d 884 (1987).
In connection with the exceptions to open meetings, KRS 61.810(6) states that a public meeting may be closed when it concerns:
Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee's, member's or student's right to a public hearing if requested, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussion of general personnel matters in secret.
KRS 61.810(6) prohibits the discussion of general personnel matters in secret and specifically limits the discussion of personnel matters in a closed session to those dealing with an individual's appointment, discipline or dismissal. On the basis of the information you have furnished, the meetings have not involved the appointment of specific persons by the University or the discipline or dismissal of specific persons employed by or working or studying at the University. Thus the assertion of KRS 61.810(6) as the ground for closing a public meeting of a public agency is inapplicable and invalid. See OAG 83-415, OAG 83-455 and OAG 83-489, copies of which are enclosed. If, however, something comes up during a public meeting that fits within the statutorily recognized exceptions to a public meeting, the committee may go into a closed session.
KRS 61.810(10) provides that a public meeting of a public agency should be closed if federal or state law specifically requires that it be conducted in privacy.
The "Family Educational and Privacy Rights Act," the so-called Buckley Amendment, found at 20 U.S.C.A. § 1232 g, cuts off federal funds otherwise available to an educational institution which has a policy or practice of permitting the release of information which is prohibited from release by that Federal enactment. See OAG 87-67, copy enclosed, at page three, and OAG 90-24, copy enclosed. As a practical matter, the Buckley Amendment prohibits the university from releasing any student's "educational records."
You maintain that the committee is not dealing with information obtained from the students' educational records but with information about students obtained from independent sources. The only reported case on this point we can find is the case you have cited, Frasca v. Andrews, 463 F. Supp. 1043 (E.D. N.Y. 1979).
At page 1050 of the court's opinion in Frasca, supra, the court said, in part, as follows:
. . . Although some of the information in Exhibit 'B' would fall within the scope of the Buckley Amendment if the source of that information had been school records, the prohibitions of the amendment cannot be deemed to extend to information which is derived from a source independent of school records. Even though a school suspension is listed in protected records, as in the present case, the suspension would also be known by members of the school community through conversation and personal contact. Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records.
The Buckley amendment cannot be invoked to close an otherwise public meeting of a public agency as that amendment is concerned with the release of the "educational records" of students and not with the holding of meetings of public agencies. The Buckley amendment cannot be invoked to prohibit comment on or discussion of facts about a student learned independently of his school records. The Buckley amendment can be invoked by the University to prohibit the release of material, the source of which is a student's educational records.