Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Kentucky Open Records Act in denying Ray Mulroy's October 20, 2011, request made on behalf of Target Publishing Co., 1 for "an electronic file of students" containing "directory information," 2 including the student's name, postal address (local and permanent), e-mail address, classification (freshman, sophomore, etc.), and enrollment status (full-time or part-time). In a timely response, Records Officer Sherri Pawson denied Mr. Mulroy's request, advising him that "[i]t is the the practice of U of L not to [create and] supply lists of names and addresses of employees, students, and alumni for commercial or other mailing purposes absent a specific agreement with a vendor or other party to contact our students, faculty, staff, and alumni on our behalf." Neither the Open Records Act, she continued, nor FERPA, obligates the agency to disclose such information. Upon receiving notification of Mr. Mulroy's appeal from this office, Ms. Pawson acknowledged that her initial response "was procedurally deficient in that I failed to cite the statutory exception authorizing the nondisclosure of the requested records," but advised that it "was completely an oversight on my part" and not a regular practice of the agency. 3 U of L also invoked KRS 61.878(1)(a) in support of its position that the "privacy right of the students far outweighs the public's need to know" given that disclosure of the requested information would not reveal "anything substantive about [its] business activities. " This office affirms the denial of Mr. Mulroy's request on the basis of KRS 61.878(1)(a) for the reasons outlined in 05-ORD-111.
On appeal Ms. Pawson explained that U of L "has a longstanding policy of not releasing addresses of students, employees, or alumni under the belief that such data is private." U of L reiterated its view that nothing in FERPA or the Open Records Act "requires the release of such information." Quoting the language of KRS 61.878(1)(a), U of L further asserted:
Kentucky's open records statute is intended to provide citizens insight into the workings of public agencies and state government. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. In [the] absence of any explanation by the requester, we can't conceive of how the disclosure of student mailing addresses reveals anything substantive about the business activities of the University of Louisville. The privacy right of students far outweighs the public's need to know.
In 05-ORD-111 U of L successfully argued against the release of such data. It was determined we properly relied upon KRS 61.878(1)(a) and [the Attorney General] ruled, "Because Pick-A-Prof has not articulated, nor can this office envision, any public purpose related to the Open Records Act which would be directly advanced by disclosure of their names and addresses, and the competing privacy interests of those students in such personal information outweighs any unarticulated public purpose, disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy in our view." [Id., p. 1.]
This office agrees that 05-ORD-111, and the analysis contained at pp. 4-9 in particular, is controlling on the facts presented. Applying the balancing test established by the
Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), and refined in
Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994) for application of KRS 61.878(1)(a), this office affirmed the denial by U of L of a request by Pick-A-Prof for "the mailing list for the incoming freshman and transfer students that have been admitted to the University of Louisville for the Fall 2005 academic semester." In so doing, this office noted that such personal information "is contained in public records which are subject to inspection, such as police accident reports, and is often accessible via sources such as telephone directories and voter registration lists," but is "'no less private simply because [it] is available someplace.'" 05-ORD-111, p. 7, quoting Zink , above, at 828.
As in Zink , the Attorney General observed, "the instant appeal requires us to weigh the public interest in disclosure, 'which is de minimis at best,' against the interests of the individuals in nondisclosure of the personal information which he or she 'may fervently wish to remain confidential or [have] only selectively released.'" Id., p. 7, quoting Zink , above, at 829. If the information is released, this office continued, "the students would then be subjected to receiving unsolicited mail from Pick-A-Prof, and perhaps such mail or telephone calls from others." Id., pp. 7-8. Quoting Zink , the Attorney General noted that "[o]ne of our time-honored rights is 'the right to be left alone,' and this office thus "failed to see how an individual who happens to be admitted or transfer to U of L, or any other state university, forfeits that right to privacy absent a prevailing public interest. " Id., p. 8. On the facts presented here, as in that appeal, "the only interest promoted by disclosure would apparently be improving the profit margin of a private entity." Id. Accordingly, this office again concludes that "disclosure of records containing personal information like the names and addresses" of students, among other identifying and contact information, "would constitute a 'clearly unwarranted' invasion of their privacy. " Id. The agency's denial is affirmed on the basis of KRS 61.878(1)(a) per 05-ORD-111, a copy of which is attached hereto and incorporated by reference.
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.
Distributed to:
Ray MulroySherri PawsonAngela D. Koshewa
Footnotes
Footnotes
1 According to its website, http://www.targetpublishing.com, Target is "the leading publisher and conference organi[z]er serving the natural, complementary health markets, leisure, education, sport and eco markets."
2 "Directory information" is a term utilized in The Family Educational Rights and Privacy Act (FERPA), codified at 20 U.S.C.A. § 1232g, subsection(b) of which provides, in relevant part:
(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (1) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to [specified individuals under specified conditions listed at (b)(1)(A)-(J)].
3 Because U of L has acknowledged this omission, which constituted a violation of KRS 61.880(1), (as did the failure to explain how the exception applied to any records withheld), and the law regarding application of this provision, which U of L is undoubtedly familiar with, is well-established, this office will not unnecessarily lengthen the instant decision with a summary of the relevant legal authority. See 10-ORD-201.