Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Kentucky Center for Investigative Reporting staff writer Jim McNair appeals the Kentucky Community and Technical College System's denial of his May 16, 2016, request for:
records identifying current and former Gateway CTC board members, current and former Gateway CTC Foundation board members, and their family members, who, during the presidency of Ed Hughes, received free or discounted tuition to attend Gateway, the value or dollar amount of the tuition, the semesters/time periods when the tuition was applied, and the courses taken by the recipients of free or discounted tuition. 1
KCTCS responded to Mr. McNair's request on May 18, 2016. Relying on KRS 61.878(1)(k) and (l), the latter misidentified as KRS 61.878(1)(j), KCTCS asserted that the personally identifiable information requested was exempt pursuant to federal restrictions on disclosure of education records found at 20 USC § 1232g and 34 CFR 99.30, and state law found at KRS 164.700 et seq. Mr. McNair subsequently appealed to this office, questioning KCTCS's characterization of the disputed records as education records. Mr. McNair argued that the records "are effectively compensatory in nature and reflect perquisites of service for Gateway board members." Additionally, he maintained, because tuition waivers affect Gateway's tuition revenue, "these become financial transactions" subject to the Open Records Act.
In multiple decisions, the Office of the Attorney General has recognized that "[s]tudent education records, including records relating to tuition fees, are excluded from public inspection by the Family Educational Rights and Privacy Act, and implementing regulations, and the [educational institution] risks termination of federal funding if it releases the records without" parental or eligible student consent. 2 98-ORD-162, p. 4 (copy enclosed). In 08-ORD-031, a decision reaffirming this view, this office noted that on February 5, 2008, we confirmed that "the Family Policy Compliance Office of the United States Department of Education, the federal agency charged with interpretation and enforcement of FERPA, treats tuition records as protected education records that cannot be disclosed without" parental or eligible student consent. We confirmed that this remains the Family Policy Compliance Office's position in a June 22, 2016, telephone discussion with a representative of that office. Our decision today finds additional support in 05-ORD-081 (affirming educational institution's denial of a request for tuition information on the basis of 20 USC § 1232g).
The Family Policy Compliance Office recognizes a distinction between those recipients of tuition waivers or discounts who are enrolled as students and those recipients of tuition waivers or discounts who are officials or employees of the educational institution and receive tuition as a perquisite of employment, or, in this case, service. 3 The ten students who served on the Board of Directors, and who received tuition waivers under the former president's administration must be treated as students first and board members second. Accordingly, their identities are protected from disclosure by FERPA. The identity of the non-student board member who received a tuition waiver or discount is not entitled to FERPA protection inasmuch as he or she was a board member first and a student second. KCTCS's reliance on FERPA to withhold personally identifiable information relating to the ten students who served on the board, including the time periods in which the free tuition was applied and the courses taken, is consistent with the open records decisions referenced above and the stated policy of the
U.S. Department of Education's Family Policy Compliance Office. Medley v. Board of Educ., Shelby County, 168 S.W.3d 398 (Ky. App. 2004). Its reliance on FERPA to withhold personally identifiable information relating to the non-student board member was inconsistent with past open records decisions 4 and the stated policy of the U.S. Department of Education Family Policy Compliance Office. Neither this office nor the Family Policy Compliance Office recognizes a legitimate FERPA based objection to disclosure of the aggregate dollar amounts or value of the free or discounted tuition. We therefore affirm KCTCS's denial of Mr. McNair's request, as it relates to student board members but not as it relates to the non-student board member and the aggregate dollar amounts or value of the free or discounted tuition.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Mr. McNair requested additional records on this subject from KCTCS, but raises no objection to its disposition of those requests.
2 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."
3 The Family Policy Compliance Office also recognizes a distinction between need-based tuition waivers and discounts and merit based tuition waivers and discounts. The identities of merit based recipients are subject to disclosure as directory information under the awards received exception to FERPA while the identities of need based tuition waivers and discounts are not. 20 U.S.C. § 1232g(a)(5)(A).
4 See, e.g., 16-ORD-057 (holding that foundation did not meet its burden of proof in denying access to records identifying Dean's Fund Scholarship recipients); see, generally, Hardin County Schools v. Foster, 40 S.W.3d 865 (Ky. 2001).