Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Community and Technical College System (KCTCS), the state agency statutorily charged with oversight of the Commonwealth's community and technical colleges, 1 including Jefferson Community College (JCC), violated the Open Records Act in partially denying an open records request submitted by Gregory Ward Butrum on behalf of his client, John Curry. 2 For the reasons that follow, and upon the authorities cited, we conclude that although the record before us does not conclusively establish that the documents to which access was denied constitute "education records" within the meaning of 20 U.S.C. 1232g(a)(4)(A), and that redaction of personally identifying information pertaining to students other than Mr. Curry contained therein was therefore appropriate under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, the record does establish a personal privacy claim under KRS 61.878(1)(a) that is superior to any open records related public interest in disclosure of the redacted information. Accordingly, we affirm KCTCS's partial denial of Mr. Butrum's request.
On June 26, 2001, Mr. Butrum requested access to "all information relating to [his] client, John Curry, relating to his enrollment and expulsion from Jefferson Community College." Mr. Curry was expelled following an incident that occurred in the Hartford Building at JCC on December 6, 2000, in which he touched, in an apparently offensive manner, two female students. JCC Campus Safety was summoned, and a campus safety incident report charging him with sexual and physical assault was taken, along with the statements of the two female students. 3 Mr. Curry defended his actions, explaining that he is an epileptic and that the incident occurred during a seizure, but was nevertheless expelled on December 8, 2000, for violation of the KCTCS Code of Student Conduct. Mr. Butrum seeks access to unredacted copies of the campus safety incident report and accompanying statements, emphasizing "the affirmative insult to constitutional due process principles for JCC to actually take the position that it will not provide a student it has expelled with the information upon which it based its expulsion."
In her July 11, 2001, 4 response to Mr. Butrum's request, KCTCS General Counsel and Official Custodian of Records, Beverly Haverstock, released all responsive records pertaining to Mr. Curry, but redacted certain information from the incident report and accompanying statements. She offered no explanation for the redaction of names and identifying information relating to "Victim 2" and a witness from those records. On July 16, Mr. Butrum demanded unredacted copies of the records, asserting that if KCTCS "is responsible for the redactions, it is in violation of KRS 61.880, by both the redactions, as well as by its failure to include a 'statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies . . .' KRS 61.880(1)." Shortly thereafter, KCTCS staff attorney Hiroe T. Abarca issued the following response to Mr. Butrum's request for clarification:
The names of the witness and one victim, as well as the home address of such victim, were redacted from the Campus Safety Incident Report on December 6, 2000, per the Family Educational Rights and Privacy Act (FERPA), found in 20 USCA Section 1232g, Subsection (1)(A). In relevant part, FERPA states that, "If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such incident or to be informed of the specific information contained in such part of such material."
(Emphasis in original). 5 This appeal followed.
On appeal, Mr. Butrum argues that KCTCS violated KRS 61.884 specifically, 6 and "KRS Chapter 61" generally, by failing to make full disclosure of records relating to Mr. Curry. Further, he asserts that these agencies violated KRS 61.880(1) when they "intentionally refused to provide the requested information, provided altered information, did not state or express the information had been altered by it, and gave no explanation of any authorized exception to the requirement that the information be provided." It is the later violation Mr. Butrum deems most egregious, questioning whether release of the records "in this format was perhaps even a deliberate attempt to deceive." He rejects KCTCS's FERPA defense, characterizing it as "an attempt to 'CYA'," and noting that "on its face FERPA applies to 'parents' and 'children' in elementary school or high school situations [, but] does not apply to adults in college."
In a supplemental response directed to this office following commencement of Mr. Butrum's appeal, Mr. Abarca elaborated on the agency's position. Asserting that KCTCS "provided Mr. Butrum with the information that was available to Mr. Curry under the law," he observed:
KRS 61.878(1)(k) exempts from inspection "all public records or information the disclosure of which is prohibited by federal law or regulation. " The Family Educational Rights and Privacy Act of 1974 (FERPA), as amended, is set out "for the protection of privacy of parents and students". [Citing 34 CFR Subtitle A, Part 99, Subpart A.]. As such, FERPA explicitly states in pertinent part, " If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. " [Citing 20 USCA § 1232g(1)(A)]. Mr. Curry's education record included the provisions within FERPA, as it applies to adults [citing 20 USCA § 1232g(b)(7)(d)] in postsecondary education [.]
(Emphasis in original.) With reference to Mr. Butrum's allegation that KCTCS violated KRS 61.880 by providing him with altered documents and failing to explain the alterations, Mr. Abarca explained:
KCTCS did provide Mr. Butrum with an explanation for the redaction of information in responding to his Open Records request. In the explanation, KCTCS clarified that the redacted information pertained to other students and therefore, KCTCS was bound by FERPA not to disclose such information. KCTCS also provided a copy of the applicable FERPA language, specifically, 20 U.S.C.A. § 1232g(1)(A), to Mr. Butrum.
In response to this office's July 31, 2001, request for additional documentation from KCTCS, 7 Ms. Haverstock furnished this office with records relating to JCC's implementation of FERPA and designation of directory information, and again asserted that release of unredacted copies of the Campus Safety Incident Report "would represent a violation of these students' rights under FERPA." She advised:
It has been eight months since the traumatic assaults on the two women. It would be especially harmful to invade the privacy rights of these students by providing personally identifiable information to Mr. Curry in view of the passage of time and the healing that has taken place. KCTCS does not have consent from either of the students to release this information. One of the students suffered a physical assault by Mr. Curry, and has stated that she does not give consent to have her identity exposed to Mr. Curry or his attorney. The other student (whose identifiable information was redacted) was a witness to the attacks, and has not consented either.
Ms. Haverstock rejected the argument that FERPA does not apply, and that the disputed information is directory information that must be disclosed, reasoning:
It is clear that the record at issue is an "education record" pursuant to the FERPA definition found at 20 USCA § 1232g(a)(4)(A); therefore, KCTCS is bound to follow the rules set forth in FERPA in this situation.
Mr. Butrum's argument that KCTCS "must" reveal the identities of the other students in Mr. Curry's record because it is directory information is also without merit. Disclosure of directory information is discretionary. The discretion to provide directory information does not compel KCTCS to reveal protected information relating to students other than the student himself. The purpose of FERPA as explained in the implementing federal regulations is to protect the privacy of students. (34 C.F.R. § 99.2) According to 34 C.F.R. § 99.37, "An education agency or institution may disclose directory information . . . ." Furthermore, the importance of protecting students' privacy is reflected in the definition of directory information under the FERPA regulations. "Directory information means information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed." (34 C.F.R. § 99.3)
In sum, Ms. Haverstock concluded, "the students whose identities were redacted from the education record of Mr. Curry have a federally protected right to anonymity that may not be waived without their consent."
While we concur with Mr. Butrum in the view that KCTCS's response to his open records request was, at least initially, deficient, and while we are unable to affirm its partial denial of his request on the basis of KRS 61.878(1)(k) and the Family Educational Rights and Privacy Act, we find that KCTCS makes a sufficient showing under KRS 61.878(1)(a) that the privacy interests of the student "victim" and witness outweigh the open records related public interest in disclosure of these particular entries. In reaching this decision, we are guided by recent development in federal case law recognizing that liability may exist under 42 USC § 1983 for disclosure of public records containing private information that implicates a fundamental liberty interest, 8 as well as by developments in Kentucky case law recognizing the right of third parties affected by disclosure of public records containing private information to assert a claim for nondisclosure. 9 These authorities compel us to examine the nature of the records under KRS 61.878(1)(a) , which KCTCS did not specifically invoke, but indirectly referenced, and to conclude that partial access was properly denied.
We begin by commenting on a number of procedural irregularities in KCTCS's initial responses to Mr. Butrum's request. As we observed in footnote 4, above, Mr. Butrum submitted his request in a letter dated June 26. Although it is unclear on what date his request was received, Ms. Haverstock responded by letter dated July 3, advising him that the records were being gathered and would be available "no later than Wednesday, July 11, 2001," some ten business days after he mailed his request. She offered no explanation for this delay. To this extent, her response was deficient. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Because Ms. Haverstock failed to provide a detailed explanation of the cause for further delay, we find that her July 3 response violated KRS 61.872(5).
Further, we find that KCTCS violated KRS 61.880(1) in its July 11 response by failing to cite the specific exception authorizing partial denial of the campus safety incident report and accompanying statements. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act . . . .
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Pursuant to KRS 61.880(1) , denial of all, or any portion, of an open records request must be articulated in terms of the requirements of the statute, including citation to the specific exception authorizing nondisclosure and a brief explanation of how the exception applies to the record, or portion of the record, withheld.
An examination of Ms. Haverstock's July 11, 2001, response confirms that no exception was cited, and no explanation offered, for the redaction of the names of "Victim 2" and the witness to the incident, and personally identifying information relating to "Victims 1 and 2" and the witness. It was not until Mr. Butrum noted this deficiency in Ms. Haverstock's response that Mr. Abarca invoked the Family Educational Rights and Privacy Act, and not until Mr. Butrum initiated an open records appeal that Mr. Abarca invoked KRS 61.878(1)(k), through which FERPA is incorporated into the Open Records Act. Accordingly, we find that KCTCS's disposition of Mr. Butrum's request was procedurally deficient. 10
Turning to the substantive issue in this appeal, we find that although Mr. Butrum's analysis of FERPA is flawed, 11 we cannot conclusively determine that the disputed records, or portions of those records, qualify as "education records" as that term is defined at 20 U.S.C. 1232g(a)(4)(A), and therefore cannot affirm KCTCS's partial denial of his request on this basis. The Family Educational Rights and Privacy Act of 1974 12 regulates access to "education records" by imposing a penalty for release of such records to third parties without a parent's or eligible student's consent, and for denial of a parent's or eligible student's right of access to such records. That term is defined at 20 U.S.C. § 1232g(a)(4)(A) as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution." From this expansive definition four narrow categories of records are excluded. Thus, 20 U.S.C. § 1232g(a)(4)(B) (i) through (iv) provides:
(B) The term "education records" does not include--
We focus here on 20 U.S.C. § 1232g(a)(4)(B)(ii), excluding from the definition of "education records" records maintained by a law enforcement unit of the educational agency or institution that were created by the unit for the purpose of law enforcement.
34 CFR 99.8 amplifies on this excluded category of records by providing:
(a)(1) Law enforcement unit means any individual, office department, division or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to --
(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.
(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are --
(i) Created by a law enforcement unit;
(ii) Created for a law enforcement purpose; and
(iii) Maintained by the law enforcement unit,
(2) Records of a law enforcement unit does not mean --
(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or
(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.
In
Bauer v. Kincaid 759 F.Supp. 575 (W.D. Mo. 1991), a federal district court determined that although "FERPA seeks to deter schools from indiscriminately releasing student education records[, n]othing in the legislative history of FERPA refers to a policy or intent to protect campus law enforcement unit records which contain student names or other personally identifiable information." Bauer at 591. Such records, the court reasoned, do not contain "information created in the natural course of an individual's status as a student." Id. at 590, and are therefore not entitled to protection.
A review of existing case law does not establish a clear consensus on this issue. At the heart of the debate is the dichotomy between law enforcement records and disciplinary records. In
U.S. v. Miami University, 91 F.Supp.2d 1332 (S.D. Ohio 2000), the federal court deferred to the United States Department of Education "detailed definitions regarding [the law enforcement records] exception," observing:
The Department clearly has distinguished "law enforcement records" from "disciplinary records." In its regulations, the Department states that: "Records of a law enforcement unit does not mean . . . [r]ecords created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution." 34 C.F.R. § 99.8(b)(2)(ii) . Furthermore, the Department defines "disciplinary action or proceeding" as "the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to student of the agency or institution." 34 C.F.R. § 99.3.
Id. at 1153. At footnote 22 of its decision, the court referenced Rules and Regulations of the Department of Education:
FERPA was amended by Congress to exempt from the definition of "education records" those records that are created by a law enforcement unit for a law enforcement purpose and maintained by that law enforcement unit, thus allowing education agencies and institutions to disclose these records publicly without obtaining prior written consent. If a law enforcement unit of an institution creates a record for law enforcement purposes and provides a copy of that record to a dean, principal, or other school official for use in a disciplinary proceeding, that copy is an "education record" subject to FERPA if it is maintained by the dean, principal, or other school official and not the law enforcement unit. The original document created and maintained by the law enforcement unit is not an "education record" and does not become an "education record" merely because it was shared with another component of the institution.
60 F.R. 3464-3466 (Jan. 17, 1995). In Miami University, above, the court ultimately concluded that the disputed records were not "records of a law enforcement unit" but were instead disciplinary records "created and maintained . . . exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the education agency or institution." Id. at 1154.
The records in dispute in this appeal appear to have been created by the law enforcement unit of JCC for a law enforcement purpose, and maintained by that unit. Facially, they are indistinguishable from a criminal incident report prepared by a non-campus law enforcement agency. Unlike the records in Miami University, above, they were not created exclusively for a non-law enforcement purpose, such as a disciplinary action, but were turned over to the Commonwealth of Kentucky for possible criminal prosecution. Consistent with the rule that a document created by a law enforcement unit does not become an education record merely because it is shared with another component of the institution, the fact that they may have been shared with JCC's Interim Dean of Students for the purpose of internal disciplinary action did not alter their original character. Accordingly, we find that the record on appeal is insufficient to support KCTCS's claim that the campus safety incident report and accompanying statements constitute education records within the meaning of 20 U.S.C. 1232g(a)(4)(A), and that partial redaction of those records was therefore authorized by 34 C.F.R. 99.12.
Nevertheless, we believe that KCTCS does establish a cognizable privacy interest on the part of one of the "victims" and the witness whose name appears on the incident report. Based on the privacy analysis established by the
Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), that interest must prevail unless the public's interest in disclosure outweighs it. KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
At pages 327 and 328 of Board of Examiners, above, the court articulated the following standard for determining the propriety of an agency's reliance on this exception:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In an even more recent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). At page 328 of that opinion, the court discussed its "mode of decision:"
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved. The court reasoned:
We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75. 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners, supra, "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. The court thus established a bright line test for determining if a public agency's invocation of the privacy exception was proper on the facts presented.
On more than one occasion, this office has recognized that the victim of, or witness to, a crime may have a legitimate privacy interest in the nondisclosure of details of that crime. See, OAG 91-94; 96-ORD-115; compare 98-ORD-185; 99-ORD-27. Such details may certainly constitute information of a personal nature, thus satisfying the first part of the Court's privacy analysis. Although Mr. Curry was ultimately not indicted for any crime, his actions on December 6 had a sufficiently traumatic effect on one "victim" and a witness that they have requested that their names, and personally identifiable information, not be disclosed. 13 While we cannot adjudicate their claims of KRS 61.878(1)(a) exclusion as a court might do under the rule announced in Beckham v. Board of Education of Jefferson County, above, we can factor into our analysis their desire to prevent disclosure of the information pertaining to them that appears in the incident report of statements.
Against their privacy interest we must weigh the significant public interest in inspecting the records to facilitate oversight of law enforcement officers in the discharge of their duty to investigate alleged criminal conduct. Bearing in mind that the only relevant interest to be considered is the extent to which further disclosure would advance the public's right to ascertain how effectively JCC's Campus Security discharged its duties, 14 and that "the already-disclosed portions of the record" demonstrate the Campus Security promptly, responsibly, and thoroughly investigated the December 6 incident, we find that disclosure of the remaining information in the incident report and accompanying statements would constitute a clearly unwarranted invasion of the personal privacy of the "victim" and witness who were apparently so traumatized by Mr. Curry's actions that they have requested anonymity.
Acknowledging that pursuant to KRS 61.880(2)(c), the burden of proof in sustaining its partial denial of Mr. Butrum's request rests with KCTCS, and that KCTCS did not expressly invoke KRS 61.878(1)(a) in support of its partial denial of his request, we believe that the state and federal authorities cited above compel us to review the record on appeal under this provision, and to conclude that partial nondisclosure of the incident report and statements was justified.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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 proceedings.
Gregory Ward Butrum, P.S.C.Executive Office Suites-Kentucky Towers513 South Fifth StreetLouisville, KY 40202
Beverly HaverstockGeneral CounselKCTCSP. O. Box 14092Lexington, KY 40512
Hiroe T. AbarcaStaff AttorneyKCTCSP. O. Box 14092Lexington, KY 40512-4092
Footnotes
Footnotes
1 KRS 164.580, et seq.
2 We note, at the outset, that Mr. Curry executed a release authorizing disclosure of his educational records to Mr. Butrum.
3 Consistent with the Commonwealth's Attorney's recommendation, a Jefferson County grand jury later refused to indict Mr. Curry.
4 Ms. Haverstock initially responded to Mr. Butrum's request on July 3, explaining that the records were "being gathered and [that it was] anticipated that they [would] be available no later than Wednesday, July 11, 2001." To the extent that this response failed to include "a detailed explanation of the cause" of the delay beyond three business days, it was deficient. KRS 61.872(5).
5 Mr. Abarca advised Mr. Butrum that his objections to the redaction of information on the subpoena served on Officer Robert Meisberg were unfounded, noting that what Mr. Butrum "interpret[ed] to be redactions may be that certain information was highlighted and when processed through a copy machine, such portion(s) appeared to be darkened." If KCTCS has not already done so, it should furnish Mr. Butrum with a legible copy of the subpoena.
6 Although KRS 61.884 guarantees an individual's right of access "to any public record relating to him or in which he is mentioned by name," this guarantee is circumscribed by the exceptions found at KRS 61.878(1)(a) through (l).
7 KRS 61.880(2)(c).
8 Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998); Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998).
9 Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994); Lexington-Fayette Urban Count Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469 (1997).
10 Having noted these procedural deficiencies, we hasten to add that we must nevertheless consider the arguments belatedly advanced by KCTCS in support of its partial denial of Mr. Butrum's request. The error of failing to invoke the exception that arguably protects the records "cannot be remedied by committing another [by requiring disclosure as a sanction for the custodian's omission] and thus compounding mistakes." Edmondson at 859.
11 Clearly, Mr. Butrum is in error when he asserts that FERPA has no application to students attending an institution of postsecondary education. 20 U.S.C. § 1232g(b)(7)(d); 34 CFR 99.1; see also, 97-OMD-139. For purposes of the Act, an "eligible student" is defined as "a student who has reached 18 years of age or is attending an institution of postsecondary education. " 20 U.S.C. 1232g(a)(4); 34 C.F. R. 99.3. Additionally, he is incorrect in his view that an educational agency or institution is required to disclose, in an unredacted form, an education record that contains information on more than one student. In such instances, the parent or eligible student is entitled to inspect "only the specific information about the student." 34 C.F.R. 99.12; see also, 99-ORD-217; 95-ORD-55.
12 FERPA's state counterpart, which KCTCS did not invoke, is located at KRS 167.700 et seq., and is incorporated into the Open Records Act by operation of KRS 61.878(l)(1)
13 KCTCS offers no explanation for the redaction of the address, date of birth, and phone number of "Victim 1," whose name appears on the Campus Safety Incident Report. In the absence of proof that disclosure of this information would constitute a clearly unwarranted invasion of the named "Victim's" privacy, we believe KCTCS is obligated to release this information.
14 However compelling Mr. Curry's constitutional due process claims may be, they cannot be considered in adjudicating a dispute under the Open Records Act.