Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : University of Louisville did not violate Open Records Act by withholding identities of students disciplined upon allegations of violent crimes or nonforcible sex offenses under KRS 61.878(1)(a), where no public interest in disclosure of identities was shown to outweigh students' privacy interests, but the University did violate the Act by untimely responding and failing to cite an exception to the Act.
Open Records Decision
The question presented in this appeal is whether the University of Louisville ("the University") violated the Open Records Act in its disposition of Kenny Jacoby's April 25, 2019, request for "the 'final results' of all disciplinary hearings ... since January 1, 2014," in which a student was disciplined upon allegations of either crimes of violence or nonforcible sex offenses. For the reasons that follow, we find that the University procedurally violated the Act, but did not substantively violate the Act.
In his request, Mr. Jacoby specified that by "final results" he meant only the name of the student, the rule violated, the "essential findings" as to the violation, and the sanction imposed. He also cited federal regulations permitting educational institutions to disclose such information under the Federal Education Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g.
The University's records custodian first responded by e-mail on May 6, 2019, stating: "I've asked the appropriate university officials to determine what, if any, records exist and send them to me for review. Once I have any records in-hand I can better conclude the time needed to respond." No further communication between the parties appears to have occurred until the University's final disposition of the request on July 18, 2019.
KRS 61.880(1) 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.
The University did not respond in any way for seven business days, and it did not issue a substantive decision for nearly two months. This failure to comply with KRS 61.880(1) procedurally violated the Open Records Act.
In its final disposition on July 18, 2019, the University provided the requested records in redacted form, omitting only the identities of the students who were disciplined or were the complaining witnesses in the eight cases responsive to the request. 1As justification for its redactions, the University stated: "The University of Louisville takes seriously its obligations under the federal Family Educational Rights and Privacy Act (FERPA) and staunchly respects the privacy rights of students. The University, therefore, generally declines to disseminate any records related to any student unless otherwise expressly provided for under FERPA, its related federal regulations, or any other applicable state and federal law. The University of Louisville also seeks to operate in an open manner to the extent possible; the de-identified data provided in the attached report is responsive to your request and conforms to the requirements of FERPA."
As KRS 61.880(1) further provides:
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.
An agency response that fails to cite an exception in support of a denial is deficient and procedurally violates the Act. 16-ORD-211. Therefore, the University committed an additional procedural violation by not explaining how an exception applied to the record withheld, as required by KRS 61.880(1).
On appeal, the University ceased to invoke FERPA and instead relied on the privacy rights of students under KRS 61.878(1)(a), which exempts from the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Under this provision, "[o]nce a protectable privacy interest is established, proper application of the Open Records Act requires a 'comparative weighing of the antagonistic interests'--the privacy interest versus the policy of openness for the public good."
Cape Publications v. City of Louisville , 147 S.W.3d 731, 734 (Ky. App. 2003) (quoting
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992).
There is no doubt that students subjected to discipline have not only a protectable privacy interest, but a heightened privacy interest, in their disciplinary records. As we stated in 97-ORD-4:
This office has long recognized that records relating to student discipline and "disciplinary proceedings are protected from public disclosure by KRS 61.878(1)(a)." ... These opinions are premised on the notion that the privacy rights of students in such matters are superior to the public's right to know that the [educational institution] is discharging its duties relative to the imposition of discipline.
(Emphasis added; quoting OAG 83-427.) See also 99-ORD-160. "Where, as noted, such records have long been recognized as confidential, release of them regarding a given student would constitute a clearly unwarranted invasion of that student's personal privacy." OAG 89-38.
It is true that "when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent."
Zink v. Com., Dep't of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828 (Ky. App. 1994). For this reason, this office and the courts have sometimes stated that a personal privacy interest in law enforcement records may be reduced when the individual is charged with a crime.
Lexington H-L Services, Inc. v. Lexington-Fayette Urban Cty. Gov't , 297 S.W.3d 579 (Ky. App. 2009); 12-ORD-227; 09-ORD-156; OAG 91-35. Here, however, there is nothing in the record on appeal to indicate whether any of the students were ever criminally charged. The University, for its part, maintains that it "does not possess records or information disclosing whether" they were. Moreover, the records at issue are student disciplinary records, not criminal or law enforcement records. As student discipline is a separate and distinct matter from law enforcement, we do not regard these students' privacy interests as somehow reduced by the nature of the alleged offenses.
To overcome a significant privacy interest, a requester must assert a superior countervailing public interest in disclosure. "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 v. Com., Dep't of Workers' Claims, supra , 902 S.W.2d at 829. Given that the University has provided Mr. Jacoby all the information he requested about the disciplinary cases except the identities of the students, he "has failed to demonstrate how disclosure of th[ese] particular [students'] identit[ies] would further such an interest under the specific facts of this case." Lexington H-L Services, Inc. , 297 S.W.3d at 585. Indeed, Mr. Jacoby "has never established or even maintained that these documents were insufficient to provide an adequate basis to fully investigate [the University's] conduct." Id .
In response to the University's assertion of student privacy interests under KRS 61.878(1)(a), Mr. Jacoby makes three arguments. First, he argues that 99-ORD-160 and 97-ORD-4 are distinguishable from the present appeal because they involved students in primary and secondary schools, as opposed to postsecondary schools. This argument overlooks the facts that the opinions on which we based those decisions concerned discipline of postsecondary students. See OAG 89-38 (Eastern Kentucky University); OAG 83-427 (Morehead State University). Therefore, Mr. Jacoby's purported distinction has no significance.
Second, Mr. Jacoby argues that FERPA draws a similar distinction by expressly permitting disclosure of postsecondary disciplinary records, while not allowing the same disclosure from primary and secondary schools. 20 U.S.C. 1232g(b)(6)(B). In this case, however, the University no longer relies upon FERPA. Thus, we are not concerned here with the mandatory confidentiality of FERPA, but with permissive nondisclosure under KRS 61.878(1)(a). 2
Third, Mr. Jacoby argues that the University's imposition of discipline requires a finding by a preponderance of the evidence, which is a higher standard of proof than the probable cause required to make an arrest. Therefore, he claims, disciplined students must have a lesser privacy interest than an individual charged with a crime. Again, however, student discipline is a separate and distinct matter from criminal law. "Records pertaining to student discipline have not, under Kentucky law, been equated with records pertaining to actions of sworn police officers in relation to criminal statutes. Records pertaining to student discipline have long been recognized as confidential." OAG 89-38.
Accordingly, we find no reason to depart from our line of decisions affirming the "superior" privacy interests of students in their disciplinary records under KRS 61.878(1)(a). 97-ORD-4. We therefore find that the University did not violate the Open Records Act by withholding the identities of the students.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes