24-ORD-196
September 17, 2024
In re: Patrick Cahill/University of Kentucky
Summary: The University of Kentucky (“the University”) did not
violate the Open Records Act (“the Act”) when it denied a former
student’s request for a copy of a hearing video under KRS 61.878(1)(k)
and 20 U.S.C. § 1232g (FERPA), when the video recorded multiple
students.
Open Records Decision
On May 17, 2024, former University student Patrick Cahill (“the Appellant”)
requested a copy of the video record of his disciplinary hearing before the University
Appeals Board (“the Board”). In response, the University stated the Appellant could
“review the footage,” but “due to the FERPA protections due to the other students
involved” he could not be given a copy of the video. The University explained that the
other students were student members of the Board who were “on the footage of the
Zoom call.” This appeal followed.
The Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g,
is incorporated into the Act under KRS 61.878(1)(k). Under the relevant subsection
of FERPA, 20 U.S.C. § 1232g(b)(1), “[n]o 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 . . .) of students
without the written consent of their parents to any individual, agency, or
organization, other than to” specified individuals under conditions listed at
§ 1232g(b)(1)(A)–(J). 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 C.F.R. § 99.5.
The Appellant claims the membership of students on the Board is “directory
information” and therefore not subject to FERPA restrictions. “‘[D]irectory
information’ relating to a student” 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
education
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 C.F.R. § 99.3. It is the decision 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 determination, it may no
longer rely on FERPA to withhold information so designated. See, e.g., 19-ORD-194;
05-ORD-081.
Here, the University has given public notice on its website1 that its designation
of “directory information” includes a student’s name2 and photograph, as well as
“[p]articipation in officially recognized activities and sports.” Thus, it is the
Appellant’s position that the identities of the student members of the Board are not
information subject to FERPA because serving on the Board is an officially recognized
activity.
On appeal, however the University explains that the video record of the
hearing contains more than the students’ names and the fact that they are members
of the Board. According to an affidavit from the associate professor who served as
hearing officer, the Appellant’s hearing was conducted via Zoom video teleconference
and the student members of the hearing panel “were visible to all other attendees,”
so that “anyone watching the [Z]oom recording would see the faces [and] hear the
voices of the student members.” Thus, the video record of the hearing depicts the
students’ conduct. Video footage of students is an “education record” containing
personally identifiable student information within the meaning of FERPA. See, e.g.,
Medley v. Bd. of Educ. of Shelby Cnty., 168 S.W.3d 398, 404 (Ky. App. 2004); 22-ORD-
073; 99-ORD-217 (finding that FERPA prevents even the parent of a student recorded
on video from inspecting such recording when the video also captured other students).
Although the University has designated a student’s “photograph” as directory
information, it has not so designated audiovisual footage of students.
The Appellant claims the University could comply with FERPA by providing
him a copy of the video with portions of the screen obscured. However, according to
an affidavit from the University’s Educational Zoom Administrator, “Zoom does not
1
See https://registrar.uky.edu/ferpa (last accessed July 18, 2024).
2
Although “name” is not listed as a separate item of directory information on the University’s
FERPA page, the page gives notice that “opting out of directory information release” will render the
University “unable to include [a student’s] name in any publications, such as a dean’s list or the
commencement program.” Thus, by implication, a student’s name is directory information.offer a native feature to redact a participant’s presence, audio or comments directly
within the platform.” When personally identifiable information of other students “is
inextricably intermingled and therefore nonsegregable,” video footage cannot be
disclosed in keeping with FERPA. 99-ORD-217. Furthermore, even if it were possible
to redact the Zoom recording, the Appellant knows the identities of those students
because he was a participant in the hearing. Under 34 C.F.R. § 99.3, “personally
identifiable information” includes “information requested by a person who the
educational agency or institution reasonably believes knows the identity of the
student to whom the education record relates.” Therefore, obscuring the names and
faces of the student Board members would not alter the status of the video as an
education record containing personally identifiable information of the students under
FERPA. See, e.g., 22-ORD-073. The Appellant has not obtained written consent from
the other students (or their parents) for the release of the footage. Accordingly, the
University did not violate the Act when it denied the Appellant’s request for a copy
of the video.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#296
Distributed to:
Mr. Patrick Cahill
William E. Thro, Esq.
Ms. Amy R. Spagnuolo