Request By:
Dr. Morris L. Norfleet
President
Morehead State University
201 Howell-McDowell Ad. Bldg.
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
You have requested the Attorney General to issue an opinion pertaining to the Kentucky Open Records law, KRS 61.870 et seq. Specifically your request centers on four questions concerning the release of student records on the inquiry of one student as to matters where several students are involved.
First, you ask whether you are obligated to release the tape or transcript of a student disciplinary hearing upon request by one student, when several other students were also involved who have not consented to release of this information. Pursuant to KRS 61.884, a person has the right of access to any public record relating to him. However, the other students have the right under KRS 61.878(1)(a) to nondisclosure of private information. Therefore, only those parts of the tape or transcript which relate to the student requesting access are available to him. KRS 61.878(3).
Second, since the University has an obligation to release those portions of the non-excepted material to the requesting student, you ask the practical question of how this is to be accomplished when several students are involved on the tape or in the transcript. Whereas selective erasure of a tape appears difficult and ineffective, the selective marking out of a transcript seems to be the answer. If you intend to rely on KRS 61.872(5) which allows refusal of inspection due to the unreasonable burden of producing voluminous records, you must be able to maintain this refusal by clear and convincing evidence.
As this office is restricted to issuing opinions on current factual situations, it is difficult at this time to answer your third question concerning the effect on disciplinary proceedings for failure to produce records protected by 20 U.S.C. 1232(g) and KRS 164.283, and whether information not released due to the privacy right of students involved other than the requesting student is subject to legal challenge. To attempt an answer requires first some background material.
KRS 164.370 invests Morehead with "the power to suspend or expel any student for disobedience to its rules, or for any other contumacy, insubordination or immoral conduct." Pursuant to this statute, Morehead holds disciplinary proceedings which are exempt from the Open Meetings requirements under KRS 61.810(6). Closed sessions are allowed to protect the individual student's reputation. Minutes of closed sessions, required by KRS 61.835, can be kept confidential from public inspection without violating the Open Records law. OAG 81-235.
Furthermore, KRS 61.878(1)(f) allows exemption from public inspection
"Records of . . . agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective . . . administrative adjudication. "
Unless otherwise exempted, these records are open after enforcement action is taken or a decision is made to take no action. Therefore, as far as public inspection is concerned, KRS 61.878 (1)(f) keeps records (such as those concerning student disciplinary proceedings) closed pending administrative adjudication. After administrative adjudication is final, records may still be exempted from public inspection by KRS 61.878(1)(a) [due to privacy] ; and (g) and (h) [due to any preliminary nature].
As concerns the rights of the individual student involved in the proceedings, OAG 83-332 indicates that this student has a right to inspect all records relating to him under KRS 61.884. However, KRS 61.884 is subject to the exemptions of KRS 61.878. Therefore the student involved in the proceedings can be exempted from inspection (1) if public disclosure constitutes a clearly unwarranted invasion of another's privacy (such as another student), KRS 61.878(1)(a); (2) if the records contain preliminary drafts, notes, correspondence with private individuals (other than a notice of final action), KRS 61.878(1)(g); (3) if the records contain preliminary recommendations or memoranda which express opinions or policies, KRS 61.878(1)(h); (4) and if disclosure is prohibited by federal law or regulation or by the Kentucky General Assembly, KRS 61.878(1)(i), (j).
Finally, KRS 164.283(5) provides for release of all student records upon request to any federal, state, or local law enforcement agency or any court of law.
It therefore appears that refusal to produce records protected from disclosure by 20 U.S.C. 1232(g) and KRS 164.283 is proper pursuant to KRS 61.878(1)(i) and (j). Records of disciplinary proceedings are protected from public disclosure by KRS 61.878(1)(a), and the requesting student is allowed access to only those records relating to him. KRS 164.283(5) does allow access to these records by a court of law.
Finally, you ask the University's obligation in releasing information where criminal investigations are pending. Again, KRS 61.878(1)(f) will exempt public disclosure of any records of law enforcement or administrative agencies if premature disclosure is harmful to the agency. KRS 61.878(1)(a) also protects against release of information concerning other students who have not given consent to disclosure due to the protection against an unwarranted invasion of privacy.
This opinion has hopefully answered your questions. If you need further assistance, please do not hesitate to contact this office.