Request By:
Anita Lawson
Assistant to the President
Office of the President
Murray State University
Murray, Kentucky 42071-3305
Opinion
Opinion By:
By letter of January 22, 1990, Jon L. Fleischaker, as counsel for the Courier-Journal and Louisville Times Co., has appealed your January 3, 1990, and January 5, 1990, denials of requests of Courier-Journal staff writer Fran S. Ellers, dated December 27, 1989, and January 2, 1990, to inspect certain records held by Murray State University or its agencies.
KRS 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one whose request to inspect a public record has been denied, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions.
This opinion addresses your responses to both of Ms. Ellers' requests.
FINDINGS IN BRIEF
Murray State University acted consistent with Open Records provisions in denying inspection of records where the majority of records sought contained "education records," as defined, and effectively made confidential by, the federal Buckley Amendment, such that virtually all of the records requested would require redaction or masking to remove information personally identifiable to a student, an unreasonable burden in view of the scope of the request(s), if the records were to be made available for inspection without jeopardizing federal aid. The University, however, failed to act consistent with Open Records provisions in denying a request to inspect five particular public safety dispatcher log cards, since the request for those specified items was particular, and narrow in scope, thus making redaction or masking of confidential information feasible without unreasonable burden upon the agency.
FACTUAL BACKGROUND
Fran Ellers, a staff writer for the Courier-Journal, submitted two requests to inspect and copy records of Murray State University, a public agency for purposes of Open Records provisions.
By request dated December 27, 1989, Ms. Ellers asked to inspect and copy:
1. Any and all records maintained on a daily basis by the university's public safety office for all days during the fall semester of 1989. This would include, but not be limited to, the office's activity logs and/or any and all daily reports and other records kept by the office.
2. Any and all "serious incident reports" on file at the office of student development from the fall semester of 1989. (See attached copy of instructions and "serious incident report" form.)
3. Any and all documents, including reports, notes, correspondence, investigation reports and other records, regarding a disturbance at or around Wpoods Hall the night of Nov. 17, 1989. This would include, but not be limited to, records kept by or at the public safety office, the office of student development, and/or the housing office.
4. Any and all complaints filed by students at Woods Hall during the fall semester of 1989 and records relating to those complaints and their disposition.
5. Any and all correspondence and/or records, including notes, relating to any complaints of mail tampering by a student or students at the university during the fall semester of 1989.
By letter dated January 2, 1990, Ms. Ellers asked to inspect and copy:
. . . [C]ards maintained by the public safety office in regard to incidents investigated by the office for the fall semester of 1989. These cards are often referred to on the office's daily log; card numbers that would be included in this request, which should extend through December 1989, are 22245, 22243, 22238, 22230, 22226.
Ms. Ellers indicated, in substance, concerning the cards particularized in the quotation immediately above, that it was her expectation such cards would be covered in her December 27, 1989, request "for any and all records maintained on a daily basis by the university's public safety office for all days during the fall semester of 1989" but that the separate request was forwarded at your suggestion.
You responded in separate writings to each of Ms. Ellers' requests.
Your response to Ms. Ellers' December 27, 1989, request was dated January 3, 1990. After setting forth a number of "general observations," you responded, in part, as follows (re-ordered here to conform to the order of requests contained in Ms. Ellers' request of December 27, 1989) as follows:
Regarding Ms. Ellers' requests numbered 1 and 2 of December 27, 1989, you stated:
The university must decline to permit inspection pursuant to KRS 61.878(1)(a), (g), (h), and (i). Please note the Buckley Amendment is once again involved pursuant to KRS 61.878(1)(i).
Regarding Ms. Ellers' request number 3, of December 27, 1989, you indicated:
This request is denied for the following reasons:
1. This request deals with preliminary matters and thus is prohibited under KRS 61.878(1)(g) and (h). Your attention is directed to the following opinions of the Office of Attorney General which give credence to this conclusion: OAG 77-55, OAG 84-342, OAG 85-90 and OAG 85-107. In addition, your attention is directed to the Attorney General's Opinion OAG 86-80 which indicates that it is the prerogative of the Public Safety Department to determine when an investigation is still continuing and the matter has not been finally concluded.
2. The obligations imposed by the Family Educational and Privacy Act (Buckley Amendment) operates so as to prohibit the University from honoring your request.
Regarding Ms. Ellers' requests number 4 and 5 of December 27, 1989, you indicated:
These requests are clearly prohibited by the Buckley Amendment and are probably subject to refusal under KRS 61.878(1)(a)(g) and (h). Your requests numbers 4 and 5 are denied.
You also indicated, regarding your responses to Ms. Ellers that:
In summary, in addition to the specific reasons stated hereinbefore, the University feels that your requests taken as presented are such as to lack specificity and impose an undue burden on the university. In some instances a state agency may permit individuals to search a body of materials in order to find that for which they may be searching. The University, however, is in a different position from other agencies which are not under the strictures of the Family Educational and Privacy Act. Those bodies do not stand to lose large sums of federal monies as a consequence of such inspection.
In response to Ms. Ellers' January 2, 1990, request to inspect and copy cards maintained by the public safety office, concerning incidents investigated by the office for the fall semester of 1989, and in particular certain cards particularized by number, you indicated:
A. The Five Specified Cards
The cards you enumerated specifically . . . contain individual student information and records and are thus required to be withheld under the Buckley Amendment, 20 U.S.C.A. § 1232(g)(b)(1), and KRS 61.878 (1)(i).
These five cards further involve matters private to the individuals involved; investigative materials connected with an ongoing investigation; preliminary notes containing no statements of any final action; and materials which Murray State University has expressly guaranteed its students to protect. Authority for these bases of denial are, respectively, KRS 61.878(1)(a); KRS 61.878(1)(f); KRS 61.878 (1)(g); and the Murray State University Student Life Handbook , pp. 39-44.
Further, the Buckley Amendment constrains a public university from allowing access to information which may involve possible disciplinary action regarding specific students. OAG 89-38.
For these reasons, your request to inspect the five cards is denied.
B. Request for All Crads from Fall Semester of 1989
Your request to inspect all the cards from Fall Semester 1989 is denied for all the reasons stated above under A., and for the following additional reasons .
Our brief perusal of the fall semester cards reveals that approximately 95% of them involve students. Blanket requests need not be honored. Opinion of the Attorney General (OAG) 76-375. Requests lacking specificity need not be honored. OAG 83-386, citing KRS 61.872(5). The public agency has no obligation to separate exempted from non-exempted materials when this would place an unreasonable burden on the agency. OAG-386 (sic) citing KRS 61.872(5). When information is in bits and pieces, public employees are not required to research and compile information to satisfy a given request. OAG 88-79. A state university acts properly under the Buckley Amendment, 20 U.S.C.A. 1232(g) when it denies access to information that may involve unwarranted invasion of personal privacy of a student. OAG 89-38, citing KRS 61.878(1)(a).
You indicated that for such reasons, the remainder of Ms. Ellers' request was denied. You concluded by stating:
. . . [W]e believe that the Kentucky Open Records Law was not enacted to provide blanket and unspecified access to materials such as you have requested, but rather requires only the granting of requests for specific, single (or few) records which will not place an unreasonable burden on the public agency to produce, which can be easily prepared by the agency insofar as separating protected from non-protected information is concerned (see KRS 61.878 [4]), and which does not otherwise fall under any statutory exception. The nature of your request, and of the materials concerned, require us to deny your request.
The Courier-Journal's appeal followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880 (1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880 (2).
Procedural Considerations :
Your responses to Ms. Ellers' requests were in writing, were timely, and recited specific exceptions, from among those in KRS 61.878, upon which your denials were based. Your explanations regarding the relationship of particular exceptions to records withheld might have been more specific and more closely tied to your denial statements. Nonetheless, taken as a whole, your response explains the relationship of particular exceptions to the various categories of records involved, and while "brevity" might be questioned, we believe what can be taken as relatively brief explanations of the relationship between specific exceptions, and records withheld, were provided. A copy of your denials were forwarded to the Attorney General. To such extent, Murray State University acted consistent with KRS 61.870 to 61.884 (Open Records provisions).
Having determined that, procedurally, the University acted consistent with Open Records provisions, we turn to the question of whether the bases of denial you cited were proper in view of the facts involved.
The Buckley Amendment
In each of your denials regarding particular elements of Ms. Ellers' requests, you cited the Buckley Amendment [The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g], as one of the bases of denial, by way of KRS 61.878 (1)(i).
KRS 61.878 (1)(i) authorizes a public agency to deny inspection of public records or information "the disclosure of which is prohibited by federal law or regulation."
The Courier-Journal's counsel asserts that the Buckley Amendment does not control here because that amendment concerns the privacy of education records . He indicates the records here involved " . . . do not contain information directly related to a student, but instead contain information related to criminal activity." Mr. Fleischaker, in his letter of appeal on behalf of the Courier-Journal states:
Information regarding such activity is not shielded from public view merely because it occurs on a university campus and is reported to campus police. Indeed, 20 U.S.C. § 1232 (g)(4)(B)(ii) recognizes that records of a discreet law enforcement unit -- like Murray State's public safety office -- are not education records.
We have carefully analyzed the Buckley Amendment as related to the assertions of the Courier-Journal's counsel. We find that the vast majority of the records here involved are "education records," within the meaning of the Buckley Amendment. Records of the Murray State University office of public safety are not maintained in such a way that they would fall within what might be termed the "law enforcement unit" exception to the Buckley Amendment. Discussion follows.
The Buckley Amendment, at 20 U.S.C. § 1232g(b)(1), provides 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 . . . ) of students without the written consent of their parents to any individual, agency, or organization . . . .
[Emphasis added.]
[The authority provided to parents to give consent for release of education records is accorded to the student where the student has attained the age of eighteen years, etc. See 20 U.S.C. § 1232g(c) and 34 CFR § 99.5.]
"Applicable program" as used above means, in general, a federally funded educational program (See 34 CFR § 99.1). Murray State University receives federal support for a variety of education or education-related programs ("applicable programs"), and would be subject to a loss of such funds should it violate the terms of the Buckley Amendment.
"Education records," as used in the Buckley Amendment, are defined, in part, at 20 U.S.C. § 1232g(a)(4) as:
(A) . . . 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.
(B) The term "education records" does not include --
* * * *
(ii) if the personnel of a law enforcement unit do not have access to education records under subsection (b)(1) of this section, the records and documents of such law enforcement unit which (I) are kept apart from records described in subparagraph (A), (II) are maintained solely for law enforcement purposes, and (III) are not made available to persons other than law enforcement officials of the same jurisdiction;
* * * *
[Emphasis added.]
The vast majority of the records here involved contain information, e.g., name, dorm room number, etc., of a student at Murray State University. Records that identify a student obviously "directly relate to a student." Records held by the University's office of student development, or housing office, perhaps would be almost exclusively "directly related to a student."
We cannot agree with the Courier-Journal's counsel's claim that the Murray State University office of public safety is a "discreet law enforcement unit" within the meaning of the Buckley Amendment, such that records of the unit would not be included in the definition of "education records" pursuant to the Buckley Amendment.
It appears from the "Instructions for Handling Serious Incidents," that accompanied Ms. Ellers' December 27, 1989, request, that the original of the form is required to be tendered to the office of student development. Other records of the public safety office, e.g., a uniform offense report, are understood to be furnished by the public safety office to the student development office when the matter involved might concern student conduct rules. Such transmittals constitute a "making available to persons other than law enforcement officials of the same jurisdiction" (See 20 U.S.C. § 1232g(a)(4)(B)(ii)(III), above). In other words, records of the Murray State University public safety office cannot be said to be "maintained solely for law enforcement purposes" (Cf. 20 U.S.C. § 1232g(a)(4)(B)(ii)(II), above). See also, 34 CFR § 99.3. And see, January 12, 1987, letter, Patricia Ballinger, Director, Family Educational Rights and Privacy Office, United States Department of Education, to Debra King, Associate General Counsel, University of South Florida (copy attached). It follows that records of the Murray State University public safety office are not excepted from the general rule banning disclosure.
Previous opinions of this office have held that the Buckley Amendment was applicable to a state college or university (See, for example, OAG 80-471; 85-140; 87-67; 89-38). In OAG 80-471, we observed that such amendment had mandatory effect in Kentucky because of the statutory authorization (KRS 164.288) for state colleges or universities to accept federal funds. Such view was reiterated in OAG's 87-67 and 89-38. Upon reconsideration in connection with this opinion, we believe we must continue to follow such view. The legislature has authorized state universities to accept federal aid. KRS 164.288. Accordingly, the legislature, and the agencies of the state must recognize, and comply with, federal requirements regarding that aid (e.g., the Buckley Amendment) . We cannot find that records must be made available for public inspection where, because of a federal enactment, release of the records might cause loss of funding for the very agency that generated the records sought. Murray State University and the Commonwealth of Kentucky are bound by the Buckley Amendment. KRS 164.288. OAG 80-471; 85-140; 87-67; 89-38.
In the only appellate court case the undersigned could locate, specifically addressing application of the Buckley Amendment in connection with a state open records act, where the question involved denial pursuant to Buckley, under a state provision permitting denial "except as otherwise provided by statute" (similar to our KRS 61.878(1)(i)), the New Hampshire Supreme Court upheld denial of inspection where denial was based upon the Buckley Amendment. See Brent v. Paquette, et al, 567 A.2d 976, at 984-985 (N.H. 1989), Rehearing denied January 26, 1990. The opinion in Campus Communications v. Criser , a case heard in a Florida lower court (13 Media Law Reporter 1398, 1399 (Florida, 1986), cited by the Courier-Journal's counsel, did not address the Buckley Amendment, and thus is inapposite to the concerns here.
For the reasons indicated, we find the Buckley Amendment is binding upon Murray State University, and further find that the records of the Murray State University office of public safety are "education records" within the meaning of the Buckley Amendment.
Having found the Buckley Amendment generally applicable to records held by Murray State University, and that office of public safety records are not excluded from such purview, the question becomes one regarding specific applicability of Buckley Amendment provisions (and Kentucky Open Records provisions) to records Ms. Ellers has requested.
Answering this question is made difficult by the breadth of Ms. Ellers' requests, and the relative generality of the University's response of January 3, 1990.
The records sought involve: (1) records held by various units of Murray State University other than the school's law enforcement unit , (2) records held by the school's public safety office, which we believe would be considered a "law enforcement unit" within the meaning of the Buckley Amendment, as discussed below. The problem is further complicated by the fact that the university would have some records that do not relate to a student , and would thus be entirely outside Buckley Amendment purview, and others, presumably comprising the great majority, that do relate to students, and are, therefore, subject to Buckley Amendment provisions. The requests seek, in part, " Any and all records maintained on a daily basis by the public safety office . . . for the fall semester 1989" (emphasis added), in some instances, while particularizing others by category e.g., "activity logs, " "serious incident reports," etc. In three instances there is closer particularization of records sought, i.e., "all documents . . . regarding a disturbance at or around Woods Hall on the night of November 17, 1989" (Request No. 3, of December 27, 1989), " Any and all . . . records . . . relating to . . . complaints of mail tampering by a student . . . during the fall semester 1989," and " . . . card numbers . . . ." [Emphasis added.]
Review of Substantive Denials
Request No. 1, December 27, 1989 (see page 2 of this opinion):
We uphold the University's denial of inspection of records sought by Request No. 1, of December 27, 1989, for the following reasons. First, the request, in asking for " . . . all records maintained on a daily basis by the university's public safety office . . . " asks for literally every record of the unit. Second, a large part of the records encompassed within the request, we believe, based upon a telephone conversation with associate public safety director Joe Green, contain information "directly related to a student." Because of the way Murray State's public safety office records are distributed, the records would be excluded from the definition of "education records" contained in the Buckley Amendment.
Where the request for records is broad (as in the case of Request No. 1), and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872(5). While your response did not cite KRS 61.872(5) with specificity in relation to Ms. Ellers' Request No. 1 of December 27, 1989, your general (pp 6-7, Response of January 3, 1990) and summary remarks (p. 8, Response of January 3, 1990), together with the facts here involved, in our view, make and sustain a claim of unreasonable burden, regarding such request, within the meaning of KRS 61.872(5). We uphold the denial of inspection sought by Request No. 1 pursuant to KRS 61.878(1)(i), 20 U.S.C. § 123g(b)(1), and KRS 61.872(5).
The Courier-Journal's counsel calls attention to several prior opinions of this office (OAG's 77-102, 79-387, and 89-20), finding that police blotters or dispatch logs are subject to public inspection. Those opinions are distinguished from the facts here. They did not involve records of a university public safety or law enforcement unit subject to Buckley Amendment provisions. OAG 79-502, cited by the Courier-Journal's counsel, is unrelated to police logs.
Because of our finding that denial of Request No. 1 could be properly based upon KRS 61.872(5), and 20 U.S.C. §$1232g(b)(1), via KRS 61.878(1)(i), we do not analyze the request vis-a-vis your denials pursuant to KRS 61.878(1)(a),
Request No. 2, December 27, 1989 (see page 2 of this opinion):
We uphold, pursuant to KRS 61.872(5), and 20 U.S.C. § 1232g(b)(1), via KRS 6.878(1)(i), the University's denial of inspection of records sought by Request No. 2. We do so in view of the necessity of redaction or masking to remove student identifying information, coupled with the relative breadth of the request. See the discussion above regarding Request No. 1.
For the same reason expressed above regarding Request No. 1, we do not analyze this request vis-a-vis your denials pursuant to KRS 61.878(1)(a), (g), and (h).
Request No. 3, December 27, 1989 (see page 3 of this opinion):
We find the University acted consistent with KRS 61.870 to 61.884 in its response to Request No. 3. Discussion follows.
This request sought to inspect all documents regarding a particular incident, i.e., a disturbance at or around Woods Hall (a co-ed dormitory) on the Murray State University campus on the night of November 17, 1989. The request sought such records held at the public safety office, the office of student development, and the housing office.
The undersigned understands from telephone conversations with Associate Public Safety Director Joe Green, and yourself that the only records related to such incident are notes. There are no dispatchers log cards, offense reports, etc. There is no final report regarding the incident.
An agency may, in accordance with KRS 61.878(1)(g), properly exclude "notes" from public inspection.
We find that Murray State University acted consistent with KRS 61.870 to 61.884 in its denial of Request No. 3 pursuant to KRS 61.878(1)(g).
In future responses to requests to inspect public records, which involve denials, the university should indicate the types of records it holds in relation to a given request, i.e., notes, memorandums, reports, etc. If the university has no records of a type requested, it should specifically so indicate.
$ Request No 4, December 27, 1989 (see page 3 of this opinion):
We uphold the University's denial of inspection regarding Request No. 4, in view of the breadth of the request (". . . all complaints filed by students at Woods Hall during the fall semester of 1989 and records relating to those complaints and their disposition"), coupled with the redaction or masking requirements effectively imposed by the Buckley Amendment. Redaction or masking of all of the type records sought for an entire semester appears to impose an unreasonable burden on the agency within the meaning of KRS 61.872(5). Accordingly, we believe the University acted consistent with KRS 61.870 to 61.884 in its denial of Request No. 4.
For the same reason expressed above regarding Request No. 1, we do not analyze this request vis-a-vis your denials pursuant to KRS 61.878(1)(a), (g), and (h).
Request No. 5, December 27, 1989 (see page 3 of this opinion):
The undersigned understands from telephone conversations with you and with Associate Public Safety Director Joe Green that the University has no records regarding complaints of mail-tampering by a student or students at the university during the fall semester, 1989. Accordingly, we make no finding regarding such records. In future responses to requests to inspect public records, when the University has no records of the type sought by a given request, it should specifically so indicate.
Request of January 2, 1990 (see page 3 of this opinion):
With respect to the University's denial of inspection of five specific "cards" (understood to be Police Dispatcher's Log Cards) specifically identified by number, we find the University failed to act consistent with KRS 61.870 to 61.884, to the extent that it did not make available for inspection, copies of such cards with student identification information redacted or masked.
KRS 61.878(4) provides that if a public record contains material which is not excepted pursuant to KRS 61.878, the public agency shall separate the excepted and make the non-excepted material available for examination.
In her request of January 2, 1990, Ms. Ellers, in addition to asking to inspect all "cards" maintained by the public safety office in regard to incidents investigated by the office for the fall semester of 1989, asked in particular to inspect five specific cards which she identified by a specific card control number.
Generally, this office has said, police dispatch cards are subject to public inspection. When we made such finding, we were speaking in terms of dispatch logs of a general jurisdiction police agency or sheriff's office - not to logs generated by a university law enforcement unit subject to Buckley Amendment provisions.
Ms. Ellers' request for five specific cards is narrow enough that redaction or masking of information contained thereon, that identifies a student, or would make the student's identity "easily traceable, " should not impose an unreasonable burden upon the public safety office. Such redaction or masking would take the record outside the definition of an "education record" within the meaning of the Buckley Amendment.
In view of KRS 61.878(4), and the reasonable particularization and narrow scope of Ms. Ellers' request to inspect five specific dispatch cards, we believe the University failed to act consistent with KRS 61.870 to 61.884 in denying, in total, inspection of the five specified cards.
The university should promptly make available for Ms. Ellers' inspection, copies of the five specifically identified cards, after information that would render a given student "personally identifiable" or might make a student's identity easily traceable , has been masked, and a copy of the masked record has been generated, such that confidential information cannot be ascertained from such copy. 20 U.S.C. § 1232g(b)(1); 34 CFR § 99.3.
"Personally identifiable information," contained upon an "education record" within the meaning of the Buckley Amendment, must be redacted or masked prior to release of such record, in order for the University to comply with Buckley Amendment requirements (unless a proper waiver has been made by all affected students). Information that must be redacted or masked includes, but is not limited to, the name of a complainant, a student name, address, specific address, e.g., room number of a given incident within a residence hall, etc., and phone number. See 34 CFR § 99.3, "Personally identifiable information," (a) through (f):
"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.
We uphold the University's denial of inspection of Ms. Ellers' request of January 2, 1990, to the extent Ms. Eller's request sought inspection of all dispatch cards for the fall semester 1989 . We do so because of the volume of cards for such period, the vast majority of which presumably directly relate to students [approximately 95% - See quotation from Lawson to Ellers, January 5, 1990, at page 6 of this opinion], such that redaction or masking would be required in order to comply with Buckley Amendment provisions. The undersigned understands that the request would require review of, and redaction or masking of, several hundred cards. We believe such task, in view of the volume of records sought, and the fact that most of the records contain confidential information, would constitute an unreasonable burden upon the agency within the meaning of KRS 61.872(5).
We find that Murray State University acted consistent with KRS 61.870 to 61.884 in its denial of inspection regarding that part of Ms. Ellers' request of January 2, 1990, that asked to inspect all cards [Murray State University Public Safety Department Dispatchers Log] , regarding incidents investigated by the Murray State University public safety office for the fall semester of 1989.
Fran Ellers, the Courier-Journal and Louisville Times Co., and Murray State University, may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Jon Fleischaker, Esq., counsel for the Courier-Journal and louisville Times Company.