Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Murray State University violated the Open Records Act in the disposition of Gregory Valentine's March 19, 2010, request for a copy of his transcript. We find that because Mr. Valentine's right of access to his transcript is governed by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700 et. seq., MSU did not violate the Act in imposing conditions on access associated with those Acts.
In a response directed to this office, Associate Counsel Teresa Moss Groves explained that Mr. Valentine's request "was processed, not as a request for records under the Open Records Act, but as a request for educational records under FERPA . . . [and] was handled by the MSU Registrar's Office rather than the Official Records Custodian for open records purposes." Continuing, Ms. Groves observed:
Whenever MSU receives a request for a transcript by a student (former), the request is treated by MSU as a request for an official copy of the transcript wherein the transcript is placed on official Registrar paper and is signed by the Registrar. As such, requests for transcripts are routinely routed to determine whether an "official" transcript is releasable as MSU policy states: "The Official academic record is the property of the university. Consequently, the university reserves the right to withhold the release of an official transcript of that record if the student has an obligation to the university, and reserves the right to maintain the information contained in the permanent record according to established practice and in compliance with state and federal laws." (See Attachment I - MSU 2009-2011 Undergraduate Bulletin, p. 23.) In Mr. Valentine's case, his transcript has a hold on it which was placed there as of June 6, 2000 for failure to repay his financial obligations (including a Perkins loan) to the University.
In support of this practice, Ms. Groves referred to, inter alia, a web posting from the National Association of Student Financial Aid Administrators addressing the propriety of withholding academic transcripts when a student defaults on a loan. Citing a number of pertinent authorities, that posting states, in part:
Prior to July 1, 1995, a school could have included a provision in the Perkins promissory note that it would not release academic transcripts of students in default. In July 1995, however, the Department of Education (ED) reassessed this practice in light of FERPA and concluded that a school would be in violation of this law if it denied a student access to inspect and review his or her education records. Under the FERPA regulations, the institution must give a student a copy of the records if failure to do so would effectively prevent him or her from exercising the right to inspect and review the records.
Subsequently, ED clarified that a school could withhold official transcripts, but could not deny an individual access to, or unofficial copies of, his or her education records. Therefore, if a school chooses to withhold the official transcript, a copy of the transcript should be furnished to the student stamped with the word "unofficial" (or a similar indication).
Thus, the United States Department of Education, whose Family Policy Compliance Office is charged with interpretation and enforcement of FERPA, has declared that release of a copy of an official transcript can be conditioned on student loan repayment.
In the concluding paragraph of her response, Ms. Groves indicated that Mr. Valentine may review his transcript, or obtain a copy of his unofficial transcript at a cost of $ 3.00, and provided him with the name and address of the individual to whom he should address his request. We find that this approach comports with the general provisions of the Open Records Act, and the specific provisions of the Family Educational Rights and Privacy Act insofar as it insures his right of access under conditions deemed permissible by the United States Department of Education. Mr. Valentine may access his transcript by virtue of FERPA, and the terms of access found in FERPA preempt the terms of access found in the Open Records Act.
Accordingly, we find that MSU did not violate the Open Records Act when it did not respond to Mr. Valentine's request for a copy of his transcript within three business days and when it indicated that it would impose reproduction charges in excess of ten cents per page. Having said this, we caution that this decision is limited to its facts and should not be construed to apply to all open records requests for access to educational records.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Gregory ValentineTeresa Moss GrovesJohn P. Rall