Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Financial Aid Professional Judgment Committee of the Office of Financial Assistance at Eastern Kentucky University violated the Open Meetings Act by failing to comply with the requirements of the Act at its June 25, 1998, meeting "and all past . . . meetings" of that body. For the reasons that follow, we find that the committee's actions constituted a violation of the Open Meetings Act.
On August 11, 1998, Andrea R. Burkett submitted a written complaint to Susan Luhman, director of the Office of Financial Assistance at Eastern Kentucky University, in which she alleged that the Financial Aid Professional Judgment Committee violated the Open Meetings Act at its June 25 meeting, during which her financial aid appeal was denied, because this, and all past meetings of the committee, were "held in closed session and no records were maintained that reflect agenda, attendance, minutes, discussion or votes of committee members." Ms. Burkett proposed that the committee remedy these violations by complying with the requirements of the Act, instituting written policies that establish selection procedures, qualifications, and terms for committee members, and instituting written procedures for maintaining accurate records of committee meetings. In a letter dated August 17, 1998, University counsel Giles T. Black responded to Ms. Burkett's complaint, advising her as follows:
The meetings of the financial aid committee are open meetings and you are welcome to attend. . . . The committee intends to adhere to the requirements of KRS 61 to the extent the statutes apply.
Mr. Black did not acknowledge that the committee's conduct at its June 25 meeting, and earlier meetings, constituted a violation of the Open Meetings Act, did not indicate whether the committee would comply with the proposed remedy, and did not state the extent to which the committee believes that "the requirements of KRS 61 . . . apply."
In our view, the issues presented in this appeal are strikingly similar to the issues presented in 97-OMD-139. In that decision the Attorney General concluded that the Housing Appeals Committee at Eastern Kentucky University is a public agency for purposes of the Open Meetings Act, but that it is authorized to go into closed session to discuss student housing appeals pursuant to KRS 61.810(1)(k) and 20 U.S.C. Section 1232g. Adopting the standard for determining whether an entity is subject to the Act, set forth in OAG 94-25, we held that the Housing Appeals Committee is a public agency because its members act as a unit, authority has been officially delegated to it, its responsibility is to consider, investigate, take action on, or report to a higher authority, and specific matters are entrusted to it. We believe that the same reasoning can be extended to the Financial Aid Professional Judgment Committee, and that it must be treated as a public agency for purposes of the Open Meetings Act. See also, Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that "a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency" ).
This holding is not disputed. In his August 17 response, Mr. Black states that "the meetings of the financial aid committee are open meetings." Because there is some ambiguity in his response about the extent to which the requirements of the Open Meetings Act applies, we hasten to note that all of the requirements of the Act apply, including the requirements that the committee provide adequate notice of its regular or special meetings (KRS 61.820 and KRS 61.823), that it record minutes of actions taken at its meetings (KRS 61.835), and that it comply with the requirements relative to conditions for attendance at its meetings (KRS 61.810). Neither the courts, nor this office, have ever recognized the right of a public agency to selectively apply the requirements of the Act.
In general, meetings of a quorum of the members of the Financial Aid Committee at which public business is discussed or at which action is taken must be open to the public at all times. KRS 61.810 (1). As in 97-OMD-139, however, we believe that the committee is authorized to go into closed session to discuss student financial aid appeals pursuant to KRS 61.810(1)(k) and 20 U.S.C. Section 1232g. The reasoning set forth at pages 3 through 5 of 97-OMD-139, involving student housing appeals, applies with equal force to student financial aid appeals. 20 U.S.C. Section 1232g(4)(A) defines the term "education record" as records, files, documents and other materials which contain information directly related to a student and maintained by an educational agency or institution or by a person acting for such agency or institution. As we noted in 97-OMD-139, 20 U.S.C. Section 1232g (b)(1) restricts discussion of education records of students, and personally identifiable information in those records, in a public meeting without a parent or eligible student's prior written consent. See, 34 CFR Part 99.3 (disclosure mans "to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral , written, or electronic means" emphasis added). Pursuant to 34 CFR § 99.31(4)(i), disclosure of financial aid information is only disclosable without prior written consent if "the disclosure is in connection with financial aid for which the student has applied or which the student has received, [and] the information is necessary for such purposes as to:
A. Determine eligibility for the aid;
B. Determine the amount of the aid;
C. Determine the conditions for the aid; or
D. Enforce the terms and conditions of the aid."
Disclosure of financial aid information, without proper written consent, is otherwise prohibited.
Accordingly, "public discussion of personally identifiable information . . . is restricted in the same manner as release of records containing that information," and the Financial Aid Professional Judgment Committee may go into closed session to discuss financial aid appeals. 97-OMD-139, p. 4. As in 97-OMD-139, an eligible student, that is a student who is eighteen or is attending an institution of postsecondary education, may waive his privacy rights under 20 U.S. C. Section 1232g by written consent, thus permitting discussion of his financial aid appeal. With respect to this right, 97-OMD-139, and in particular the discussion at pages 4 and 5, is controlling.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a) and KRS 61.848. The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.