Request By:
Dr. Raymond M. Burse
President
Kentucky State University
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Jim Malone has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect and copy various records and documents in the custody of Kentucky State University. Although Mr. Malone's letter to this office, dated September 16, 1987, does not refer to his letter to you and your letter to him, we are treating his letter of September 16, 1987, as an appeal on the basis of statements he made in a recent telephone conversation with the undersigned Assistant Attorney General.
In a letter to you, dated September 11, 1987, Mr. Malone requested, pursuant to the Open Records Act (KRS 61.870 to KRS 61.884), the following documents: "1) A copy of the KSU police log for August 30, 1987; 2) copies of all statements taken by campus police or in the possession of university officials relating to the detention by KSU police of John Mitchell on August 30; 3) copies of any and all radio transmissions by KSU police involving the detention of John Mitchell; 4) copies of any charges, summonses, instructions to appear in a campus or criminal court which were issued to John Mitchell arising from case C 1589; 5) copies of any complaints filed against the following KSU officers in the last 18 months: A. Hamilton, B. Hamilton, Melvin Burns, Sternburg or Lt. Pauley; 6) copies of any disciplinary actions taken against these officers in the last 18 months; 7) copies of any case reports, incidental reports, supplementary reports or other documents relating to case C 1589."
You replied to Mr. Malone in a letter dated September 15, 1987, in which you addressed each of his seven requests for documents. In regard to his first request you said:
To the extent that which you request includes items relating to students of the University, such items cannot be released pursuant to the requirements of the Family Educational Rights and Privacy Act of 1974 (the Buckley Amendment) . If you would like the University to review the total log for the twenty-four hour period constituting August 30, 1987, separating those items relating to students which cannot be disclosed, we will be more than glad to comply, subject to The State Journal paying the costs associated with the time and effort to separate the items which can be disclosed.
As to the fifth request, you said there have been no formal complaints filed against the officers listed by Mr. Malone. In regard to the sixth request, you advised Mr. Malone that no disciplinary action has been taken against the officers in question during the past eighteen months.
In connection with Mr. Malone's second, third, fourth and seventh requests, you advised him that the material and items he requested are not subject to disclosure pursuant to the Family Educational Rights and Privacy Act of 1974 (the Buckley Amendment) .
As previously stated Mr. Malone's letter to this office, dated September 16, 1987, and received September 17, 1987, is being treated as an appeal of your decisions in regard to his prior requests to you. The opinion of this office will, therefore, be restricted to a review of your handling of Mr. Malone's requests and will not necessarily address all of the questions set forth in his letter of September 16, 1987.
OPINION OF THE ATTORNEY GENERAL
Among the public records which are excluded from the application of the Kentucky Open Records Law and, therefore, not subject to public inspection are those records described in KRS 61.878(1)(i) as "All public records or information the disclosure of which is prohibited by federal law or regulation."
In
Kestenbaum v. Michigan State University, Mich. App., 294 N.W.2d 228, 231 (1980), the court said in part that if a university is a recipient of Federal funds it falls within the purview of the Family Educational Rights and Privacy Act (Buckley Amendment) ; 20 USCA § 1232 g.
The court, in Student Bar Association Board of Governors, Of the School of Law, University of North Carolina at Chapel Hill, 293 N.C. 594, 239 S.E.2d 415, 419 (1977), stated in part that the so-called Buckley Amendment cuts off Federal funds otherwise available to an educational institution which has a policy or practice of permitting the release of information which is prohibited from release by that Federal enactment.
Presumably Kentucky State University is a recipient of Federal funds and, therefore, it must conform to the provisions of the Buckley Amendment to retain its eligibility for those funds.
In 20 USCA § 1232 g. (b)(1), a section of the applicable Federal law, the following appears in part:
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 to the following - . . . .
(The exceptions are not quoted as they are not applicable to the fact situation presented).
In addition 20 USCA § 1232 g. (b)(2) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless -
A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents, or
B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all orders or subpoenas in advance of the compliance therewith by the educational institution or agency.
The term "education record" is defined in 20 USCA § 1232 g. (a)(4)(A) as follows:
For the purposes of this section, the term "education records" means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which -
(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
It is the opinion of the Attorney General that if Kentucky State University is a recipient of federal funds it must conform to the provisions of the Buckley Amendment to retain its eligibility for those funds and, therefore, the denial by the University of requests for all material involving and pertaining to students' "education records" was proper and is supported by KRS 61.878(1)(i) and 20 USCA § 1232 g. See also OAG 80-471 and OAG 85-140, copies of which are enclosed.
Your response to Mr. Malone stated in part that no formal complaints have been filed against the University police or security officers he named and that no disciplinary action has been taken against them during the time frame in question. You obviously cannot furnish documents which do not exist or which you do not have. Thus, your responses to such questions were proper under the terms and provisions of the Open Records Act.
In your response to Mr. Malone's first question, you dealt in part with the separation of material and your willingness to provide him with that material which was not subject to exclusions to public inspection under state and federal law if he paid "the costs associated with the time and effort to separate the items which can be disclosed."
KRS 61.878(4) provides, "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." In addition, KRS 61.874 deals in part with the fees which may be charged for copies of public records. The public agency may require advance payment of the prescribed fee and while the public agency may prescribe a reasonable fee for making copies of public records, the fee charged "shall not exceed the actual cost thereof not including the cost of staff required."
In the opinion of this office, the University has a statutory duty to separate excludable material from that which is subject to public inspection. The only costs which may be charged for copies are the actual costs of copying the documents and not the costs the staff incurred in preparing such copies.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Jim Malone, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5). If the public agency or its officials or its legal counsel interpret this opinion in part as an adverse ruling, any of them may challenge that portion of the opinion in the appropriate circuit court.