Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State University ("KSU") violated the Open Records Act in its denial of State Journal reporter McKenna Horsley's September 5, 2019, request to inspect "records that confirm Anthony L. Hendrix Jr.'s dates of attendance and participation in university-recognized activities, specifically, the Kentucky State University football team." For the reasons stated below, we find that KSU violated the Act.
KSU received Ms. Horsley's request on September 6, 2019, and denied access to the records on September 11, 2019, stating: "Based on the language of your request, it is appears [ sic ] that you are asking to review a student's records. As know [ sic ], The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 24 CFR Part 99) is a Federal law that protects the privacy of student education records. Assuming that individual you seek attended [KSU] and [KSU] was in possession of the records sought, FERPA prohibits [KSU] from providing you access to a student's records without the permission of the student's parent or student (depending on the student's age)." Ms. Horsley initiated this appeal on September 16, 2019, arguing that the records constitute "directory information" as designated by KSU; that Anthony Hendrix was 25 years old at the time of his death in 2019; and that privacy rights under FERPA do not survive a student's death.
As a preliminary matter, we note that KSU's response failed to cite the applicable exception to the Open Records Act, as required by KRS 61.880(1). The proper exception would have been KRS 61.878(1)(k), which applies to "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." KSU's failure to cite this provision was a procedural violation of the Act. 16-ORD-211.
KSU's response was also "deficient insofar as [it] failed to indicate what, if any, records exist that are responsive to the request." 06-ORD-270. A public agency's "first obligation under the Open Records Act [is] to identify responsive records," not simply to "den[y] the request based on what a hypothetical [set of records] might contain." 15-ORD-109. Furthermore, KRS 61.880(1) requires any agency response denying access to public records to include "a brief explanation of how the exception applies to the record withheld." This explanation must "provide particular and detailed information," not merely a "limited and perfunctory response."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A response that fails to identify in any way the records withheld does not comply with the requirements of KRS 61.880(1). 14-ORD-133. Therefore, KSU's failure to locate and identify responsive records violated the Open Records Act.
In its response to this appeal, dated September 27, 2019, KSU neither admitted nor denied that it possessed any records confirming Mr. Hendrix's dates of attendance at KSU or participation on its football team. In the absence of a denial that records exist, we analyze the legal issues on the presumption that KSU does possess responsive records and merely refuses to identify them. To the extent a public agency fails to identify the withheld records, it fails to meet its burden of proof under KRS 61.880(2)(c). 18-ORD-099.
Furthermore, based on Ms. Horsley's description of the requested records, we are able to conclude that KSU's denial was improper on its merits. The Family Educational and Privacy Rights Act ("FERPA"), 20 U.S.C. § 1232g, provides at subsection (b)(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 (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than [certain limited exceptions.]
When a student reaches the age of 18, "the rights accorded to, and consent required of, parents" under FERPA are transferred to the student. 34 CFR § 99.5. For purposes of this analysis, we assume that the records in question are "education records" within the meaning of FERPA and that the information they contain is "personally identifiable."
"'[D]irectory information' relating to a student," which is not subject to FERPA restrictions, may include:
the student's name , address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports , weight and height of members of athletic teams, dates of attendance , degrees and awards received, and the most recent previous educational agency or institution attended by the student.
20 U.S.C. § 1232g(a)(5)(A) (emphasis added). Directory information may also include other categories of information "that would not generally be considered harmful or an invasion of privacy if disclosed." 34 CFR § 99.3. It is the option of the educational institution to designate certain information as "directory information," subject to the applicable right of the student (or parents of a minor) to opt out of such designation. 34 CFR § 99.37(a). Once the institution has made that designation, it may no longer rely on FERPA to withhold the information. 05-ORD-081.
Here, KSU has given public notice on its website that its designation of "directory information" includes, inter alia , "Student's Name," "Dates of Attendance," "Participation in University Recognized Organization [ sic ] and Activities," and "Weight and Height of Athletic Team Member." 1The page further indicates that "[d]irectory information pertaining to students . . . is never knowingly provided to any requester for commercial purposes. 2Students must request the University not to release Directory Information; however, the consequences of that action should be considered before making the decision to do so." On the same page, KSU explains the procedure for a student to submit a request "to have Directory Information withheld."
Nothing in the record indicates that Mr. Hendrix ever opted out of this designation of directory information. As a legal adult, he had the sole right to do so with regard to his own directory information, and evidently he chose not to exercise it. Accordingly, FERPA does not prohibit disclosure of such information. Furthermore, although we have found no case law on this point, the U.S. Department of Education interprets the FERPA rights of adult students "to lapse or expire upon the death of the student. . . . Therefore, an educational agency or institution may disclose such records at its discretion or consistent with State law ." 3Thus, even if Mr. Hendrix had requested nondisclosure, there would be no surviving FERPA rights to be asserted against KSU's obligation to disclose directory information under the Open Records Act.
Ms. Horsley's request clearly limits itself to matters designated by KSU as directory information: dates of attendance and participation on KSU's football team, a university-recognized activity. As to the football team, specifically, we further note that KSU's official athletics website publicly displays football statistics for Anthony Hendrix. 4It would be "somewhat disingenuous" for KSU to publish this information when it chooses "and deny access to the same information in response to an open records request." 05-ORD-081. KSU has articulated no sufficient legal basis for denying Ms. Horsley's inspection of the requested directory information.
Accordingly, we find that KSU violated the Open Records Act by denying Ms. Horsley's request. To the extent that any responsive record may contain material otherwise exempt from the Act, it is KSU's obligation to redact any such material "and make the nonexcepted material available for examination." KRS 61.878(4). In this case, the "nonexcepted material" is all of the requested information pertaining to Anthony Hendrix.
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
1 https://kysu.edu/administration-governance/academic-affairs/registrar/d… (last visited Oct. 14, 2019).
2 Publication or related use of a public record by a newspaper or periodical" is not a commercial purpose under the Open Records Act. KRS 61.870(4)(b)1. Thus, Ms. Horsley's request is not commercial.
3 Does FERPA protect the education records of students that are deceased?" https://studentprivacy.ed.gov/faq/does-ferpa-protect-education-records-… (last visited Oct. 14, 2019).
4 https://ksuthorobreds.com/cumestats.aspx?path=football&year=2018 (last visited Oct. 14, 2019).