Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we affirm Northern Kentucky University's reliance on 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act, 1 as the basis for denying Jesse Call's November 19, 2010, request to inspect and copy "[a]ll applications submitted for the Scott Wurster Book/Special Needs Grants." Mr. Call is a reporter for NKU's student newspaper, The Northerner. Although the grants to which he requested access are administered and awarded by NKU's Student Government Association, SGA does so under the direction and guidance of NKU's Division of Student Affairs, and the disputed applications are submitted to, and maintained by, NKU. Because they contain information that directly relates to NKU students and are maintained by an educational institution, 2 the applications are "education records" as defined in 20 U.S.C. § 1232g(a)(4)(A) and cannot be disclosed without the applicants' consent.
In his letter of appeal, Mr. Call challenges NKU's reliance on FERPA, asserting that the law "was never intended to deny access to these types of university records," and that NKU is statutorily obligated to release any nonexempt information the applications contain. He concludes that The Northerner "has no interest in obtaining the confidential information of students," and is satisfied to access "the number of applications filed and the quality of the applications." 3 In supplemental correspondence directed to this office, NKU responds that "applications for financial aid in the form of scholarships are 'education records' afforded protection from public disclosure under state and federal laws." The University emphasizes that applicants must be undergraduates registered for at least six credit hours and that the applications require them to disclose private information of the kind FERPA is intended to protect. NKU questions The Northerner's shift in focus from the applications themselves to the number and quality of the applications, but concludes that "[t]he only information in the application which could reasonably serve as a basis for assessing 'quality' would clearly be personal information which is protected from disclosure by state and federal law. "
In an effort to enhance our understanding of SGA's and NKU's roles in relation to the Scott Wurster Book/Special Needs Grants, on January 3, 2011, this office requested additional information from NKU pursuant to KRS 61.880(2)(c). Additionally, we asked for copies of NKU's FERPA policies and a grant application that had been completed. In response, NKU explained that SGA "administers and awards the . . . grant under the advisement of NKU's Division of Student Affairs . . . ." Continuing, NKU advised:
The grant is . . . awarded annually using funds allocated to SGA by the Office of the Dean of Students out of NKU's operating budget . . ? . SGA, under the above-stated advisement, created the grant opportunity, designed the application, and determines award winners for the purpose of giving back to, and garnering goodwill among, the student body.
Applications . . . are submitted in person to NKU's Office of Dean of Students . . . . The 2010 grants were submitted specifically to Julie Bridewell, Administrative Assistant to the Office of Dean of Students. Upon request from Chad Howe, SGA Senator and Finance Committee Chairperson in charge of administering the 2010 grant, Ms. Bridewell conducted a check of each applicant using NKU's internal records database to ensure each applicant was in good standing with the University and thus met the minimum eligibility requirements of the grant.
In closing, NKU reiterated that "the broadly worded definition of 'education records' found at 20 U.S.C. § 1232g(a)(4)(A) extends to grant applications submitted by student in attendance. " We agree.
20 U.S.C. § 1232g, commonly referred to as FERPA, regulates access to "education records," as that term is expansively defined in the law. FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's 4 prior written consent. It is also aimed at insuring parents of students, and students themselves, if they are over eighteen years of age, access to their education records.
20 U.S.C. § 1232g(a)(1)(A) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 U.S.C. § 1232g(b)(1), which provides:
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 certain enumerated officials and organizations, or in connection with certain activities]. . . .
In Owasso Independent School District v. Falvo, 534 U.S. 426, 428 (2002), the United States Supreme Court approved the practice of peer grading in the context of a FERPA challenge to that practice. The Court recognized that "[u]nder FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions . . ." on access to student records maintained by educational institutions. Peer graded assignments, the Court reasoned, were not education records governed by FERPA because they are not "maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U.S.C. § 1232g(a)(4)(A). In Bauer v. Kincaid, 759 F.Supp. 575 (W.D. Mo. 1991), a federal district court rejected a claim that campus police incident reports were shielded from disclosure by FERPA. In so holding, the court observed:
It is reasonable to assume that criminal investigation and incident reports are not educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to the type of records which FERPA expressly protects; i.e., records relating to individual student academic performance, financial aid or scholastic probation which are kept in individual student files. These records are quite appropriately required to be kept confidential.
Bauer at 591.
Kentucky's courts have examined FERPA in two published opinions. The first recognized the public's right of access to statistical data relating to student discipline that did not identify individual students. Hardin County Schools v. Foster, 40 S.W.3d 865 (Ky. 2001). The second recognized a teacher's right of access to otherwise protected classroom videotapes under the exception to FERPA for school employees who have legitimate educational interests. Medley v. Board of Education of Shelby County, 168 S.W.3d 398 (Ky. App. 2004). In Foster, the Court concluded that FERPA did not apply to statistical information but instead applied to educational records containing personally identifiable information, observing:
Personally identifiable information would include information that makes the identity of the student easily traceable, such as name, address, or personal characteristics. See 34 C.F.R. § 99.3. It is only in a case where the requested records pertain to a single student that courts have held that a record contained personal identifiable information.
Foster at 869. The grant applications at issue in this appeal pertain to individual students and contain information that makes their identities "easily traceable. " They are, for this reason, education records containing information directly related to students and maintained by an educational institution.
With reference to the records correlating individual student identity and financial assistance, the Attorney General has recognized, in the context of an open meetings appeal, that disclosure is only permissible without a parent or eligible student's consent if the information is necessary to:
(A) Determine eligibility for the aid;
(B) Determine the amount of the aid;
(C) Determine the conditions for the aid; or
(D) Enforce the terms and conditions of the aid.
34 C.F.R. § 99.31(4)(i) as construed in 98-OMD-172. There, we affirmed the right of a university financial aid appeals committee to discuss appeals in closed session. Our decision was premised on FERPA's definition of "disclosure" which encompasses "release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means." 34 C.F.R. § 99.3 (emphasis added). Thus, at least one open meetings decision issued by the Attorney General indirectly supports NKU's denial of The Northerner's request for education records relating to financial assistance.
Although there is a substantial interest in insuring that the Scott Wurster Book/Special Needs Grants are fairly awarded by the SGA, we concur with NKU in its stated position that the broadly worded definition of "education records" found at 20 U.S.C. § 1232g(a)(4)(A) extends to applications submitted by individual students for the grants. Our in camera review of a completed grant application confirms the presence of personal information including name, address, telephone number, student identification number, GPA, activities, and personal references, thus satisfying part one of the definition found at 20 U.S.C. § 1232g(a)(4). NKU demonstrates that the applications are maintained by its Division of Student Affairs, thus satisfying part two of the definition. Under the rule announced in Hardin County Schools v. Foster, above, nothing would prohibit NKU from releasing statistics identifying, for example, the number of applications received, the number of grants awarded, and the distribution of those receiving the grants by, for example, gender, class year, or major field of study, if such statistics already exist. 5 Disclosure of existing statistical analyses of grant recipients that do not identify individual students would serve the public interest in insuring that the grants are fairly awarded while protecting the privacy interests of the individual applicants. We continue to adhere to the view that NKU properly denied Mr. Call's request for individual applications submitted, as opposed to the total number of applications submitted or other statistics related thereto, based on the conditions to disclosure codified in the Family Educational Rights and Privacy Act and recognized by the courts at the federal and state level.
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.
Footnotes
Footnotes
1 20 U.S.C. § 1232g is incorporated into the Open Records Act by KRS 61.878(1)(k), authorizing public agencies to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation."
2 NKU acknowledges that it provides SGA with one hundred percent of its operating budget. SGA is, therefore, a public agency within the meaning of KRS 61.870(1)(h) because it derives at least twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds. It is not an educational agency or institution as those terms are commonly understood. Although records maintained exclusively by SGA may not be education records for FERPA purposes, they are public records for open records purposes.
3 In the interest of avoiding future disputes with NKU, Mr. Call also seeks guidance "on what types of records are properly excludable under FERPA." The Attorney General cannot provide the requested guidance in view of his quasi-judicial role relative to open records disputes. The same considerations that prohibit courts from rendering advisory opinions compel us to adopt this policy. See 03-OMD-053, p. 2.
4 With reference to "eligible students," 20 U.S.C. § 1232g(d) provides:
[W]henever a student has attained eighteen years of age, or is attending an institution of postsecondary education, the permission or consent required of and the rights accorded to the parents of a student shall thereafter only be required of and accorded to the student.
5 NKU is not, of course, obligated to generate statistics if none exist and cannot be compelled to do so.