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 State University violated the Open Records Act in denying Courier-Journal reporter R. G. Dunlop's June 27, 2003 request for "any and all university records pertaining to an April 26, 1992 incident on campus involving KSU student Byron Tolliver and KSU Police Lt. (now Chief) Donnie Turner," including records "pertaining to the arrest, any subsequent investigation and any discipline meted out to any of the participants." For the reasons that follow, we affirm KSU's denial of Mr. Dunlop's request on the basis of 20 USC § 1232g(b)(1), 1 incorporated into the Open Records Act by operation of KRS 61.878(1)(k), 2 prohibiting disclosure of student education records by educational institutions without the written consent of their parents or the students themselves if they are eligible students 3 within the meaning of the federal law.
On July 10, 2003, KSU Director of Records, Policy and Legal Services Karen Powell advised Mr. Dunlop that "[n]one of the exceptions allowed by FERPA for nondisclosure of student records applies to inquiries under the Open Records Act, or to [Mr. Dunlop] as a reporter for a newspaper." She identified the records withheld as:
[A]n April 30, 1992 memorandum to the Vice President of Business Affairs from Chief John W. Mason, a September 29, 1992 handwritten note from Charles Stallworth, an April 26, 1992 Daily Incident Report Form, two March 3, 1992 memoranda from the Vice President for Student Affairs, a February 28, 1992 Administrative Action Request, a February 19, 1992 Daily Incident Report Form, a July 30, 1992 Daily Incident Report Form, and a February 20, 1992 memorandum to the Vice President of Business Affairs from Chief John W. Mason.
Shortly thereafter, Jon L. Fleischaker initiated this open records appeal on behalf of his client, The Courier-Journal, arguing that the disputed records fall within the statutory exception permitting disclosure of "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for purposes of law enforcement" which is codified at 20 USC § 1232g(4)(B)(ii). Alternatively, Mr. Fleischaker argued that if the disputed records do not fall within the exception for law enforcement records, "there is no evidence that these records contain any of [the student's] 'personal identifiable information' which would prohibit disclosure. " If personal identifiable information is contained in the records, he concluded, "this information could be easily redacted and the records could then be disclosed."
In supplemental correspondence directed to this office following commencement of The Courier-Journal's appeal, Ms. Powell elaborated on KSU's position. She explained that the disputed records "were all from the Office of Student Affairs and not the University Police." Continuing, she observed:
The Police files have been destroyed pursuant to the State University Model Records Retention Schedule, sections U0101, U1300, or U1301. Those documents that were not originally from Student Affairs have a stamp "Received by Office of Student Affairs." Information in the Office of Student Affairs is related to administrative adjudications, administrative information, and confirmation of student status, not law enforcement.
Additionally, Ms. Powell noted, even those documents generated by the University Police:
are not documents used for law enforcement purposes by the Police Department. According to Captain Vaughn Blade of the University Police Department, the purpose of the Daily Incident Reports and the Case Synopses were internal - meant to advise the President and his Cabinet of student activities on the campus. Captain Blade stated that a Uniform Offense Report was used when there was law enforcement activity by the University Police. The Police Department no longer uses Daily Incident Reports or Case Synopses in any form.
Pursuant to this office's KRS 61.880(2)(c) request, 4 Ms. Powell provided us with copies of the disputed records to facilitate our review. 5 Having reviewed those records, we find that KSU properly characterized them as education records to which FERPA prohibits access. This position finds support in the express language of 34 CFR § 99.8(b)(1) and (2) as construed in United States v. Miami University, 294 F.3d 797 (6th Cir. 2002).
The term "education records" is expansively defined in FERPA to include "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 or by a person acting for such agency or institution." 20 USC § 1232g(a)(4)(A). It is uniformly recognized that "[u]nder a plain language interpretation of FERPA, student disciplinary records are education records because they directly relate to a student and are kept by that student's university." Miami University at 812; compare, Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001) (statistical compilation of school disciplinary actions that is not descriptive of any readily identifiable person is not an educational record within the meaning of FERPA). FERPA regulates access to education records, including student disciplinary records, by conditioning university receipt of federal funds on compliance with the disclosure provisions contained in the Act. 20 USC § 1232g(b)(2). "Once the conditions and the funds are accepted, the school is indeed prohibited from systematically releasing education records [including student disciplinary records] without consent." Id. at 809.
As noted by The Courier-Journal, 20 USC § 1232g(a)(4)(B)(ii) excludes from the definition of education records "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement. " By federal regulation, records of a law enforcement unit means 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.
34 CFR § 99.8(b)(1)(i), (ii), and (iii) (emphasis added). And, as noted by The Courier-Journal, "[b]ecause law enforcement records are by definition not education records, the FERPA does not protect law enforcement records or place restrictions on disclosure. " Id. at 814.
The regulation excludes from the definition of "records of a law enforcement unit" "[r]ecords 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" and "[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 CFR § 99.8(b)(2)(i) and (ii). FERPA "draws a clear distinction between student disciplinary records and law enforcement unit records." Id. at 815. Whereas "[t]he former are protected as 'education records' under the FERPA without regard to the content . . . the latter are excluded from the definition of 'education records' and receive no protection by the FERPA." Id. In analyzing this dichotomy, the United States Department of Education has determined that "[i]f a law enforcement unit of an institution creates a record for law enforcement purposes and provides a copy of that record to a . . . school official for use in a disciplinary proceeding, that copy is an 'education record' subject to FERPA if it is maintained by the . . . school official . . . ." 60 FR 3464, 3466 (1995) cited in Miami University at 814.
In United States v. Miami University, the Sixth Circuit Court of Appeals affirmed a federal district court order enjoining the university from releasing student disciplinary records or any personally identifiable information contained therein, rejecting the argument that such records should be treated as unprotected law enforcement records. The decision we reach finds direct support in the court's opinion. The records in dispute are not "maintained by [KSU's] law enforcement unit," 6 and therefore do not qualify as records of a law enforcement unit within the meaning of 20 USC § 1232g(a)(4)(B)(ii) and 34 CFR § 99.8(b)(1)(i), (ii), and (iii). This is true notwithstanding the fact that some of those records were originally created by KSU's law enforcement unit for, arguably, 7 a law enforcement purpose. Consistent with the rule announced in 60 FR 3464, 3466 (1995), adopted in Miami University, when KSU's law enforcement unit provided copies to the University for disciplinary proceedings, those copies became "education records" subject to the nondisclosure provisions of FERPA. Clearly, the remaining records, comprised of internal memoranda and handwritten notes, constitute protected education records. To hold otherwise would promote University noncompliance with the disclosure provisions of the federal act and jeopardize receipt of federal funds. Accordingly, we affirm KSU's denial of Mr. Dunlop's request.
Having reviewed the disputed records, we find no merit in The Courier-Journal's alternative argument that the records do not contain information relating to Mr. Tolliver, or that if they do that information can be redacted and the records disclosed without running afoul of FERPA.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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.
Jon L. FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Karen Powell, DirectorRecords, Policy & Legal ServicesKentucky State University400 E. Main StreetFrankfort, KY 40601-2355
Footnotes
Footnotes
1 Family Educational Rights and Privacy Act (FERPA).
2 KRS 61.878(1)(k) authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation [.]
3 34 CFR § 99.3 defines an "eligible student" as "a student who has reached 18 years of age or is attending an institution of post-secondary education."
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4 KRS 61.880(2)(c) provides, in part:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
5 Our review of those records suggests that KSU liberally construed Mr. Dunlop's request to include records that pre-dated the April 26, 1992 incident involving Byron Tolliver, the arrest, any subsequent investigation, and any disciplinary action taken. Although not all necessarily responsive to the request, all of the records to which KSU denied him access qualify as education records for purposes of FERPA analysis.
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6 Those records which related to the April 1992 incident, and which were maintained by KSU's Police Department, were properly destroyed under the applicable records retention provisions of the State University Model. Those records relating to the incident, and previous incidents, that were maintained by the Office of Student Affairs and related to disciplinary action should have been "destroy[ed] five years after graduation or last day of attendance." State University Model Series U0422. Pertinent portions of the Model Schedule are attached hereto for ready reference.
7 Ms. Powell maintains that none of these records were created for a law enforcement purpose, but were instead created "to advise the President . . . of student activities on campus. "
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