State attorney general upholds University of Kentucky decision to withhold records

KENTUCKY — The University of Kentucky doesn’t have to release records about a basketball player to the school’s student newspaper, the state attorney general’s office has ruled.

The attorney general’s office made its decision without reviewing the records to determine whether they were protected by the Family Educational Rights and Privacy Act, as the university claimed. The university refused to allow the office to inspect the records, saying that doing so would violate FERPA, said Becca Clemons, The Kentucky Kernel’s editor-in-chief.

Clemons first requested records concerning communication between university and athletics staff about freshman basketball player Nerlens Noel in August, as well as records between the university and the NCAA. The university denied the request, initially citing the “preliminary draft” exemption to Kentucky’s open records law.

The paper appealed the decision to the state attorney general’s office. On appeal, the school cited FERPA as the reason it would not release the records, Clemons said. FERPA, passed in 1974, is a federal privacy law that limits the disclosure of education records maintained by schools, though there is debate as to what constitutes an education record.

In its ruling, the state attorney general’s office said it was difficult to rule on the merits of the university’s denial of the request because of its own lack of access to the records.

“Since we were unable to review the relevant documents … we rely on the University’s interpretation and application of the federal law, and its professed appreciation for the value of transparency, to ensure that public records are not improperly withheld in the name of student privacy,” the ruling states.

The university claimed that because Noel’s position on the basketball team was “inherently dependent on” his status as a student that all records in question were therefore education records, even though they did not pertain to classroom activities.

The attorney general’s office said it could not comment because of the potential for future litigation in the case.

William Thro, the university’s general counsel, said the school’s position is that intercollegiate athletics is an educational activity.

“The definition of educational record is quite broad, and in this instance they are educational record, they relate the ability of a student to participate in an educational activity,” Thro said.

In the ruling, the attorney general’s office cited the decision in the recent lawsuit between ESPN and Ohio State University over records relating to impermissible benefits given to players on the football team. The Ohio Supreme Court found that education records “need only ‘contain information directly related to a student’” in order to be protected by FERPA.

Though the attorney general’s office essentially confirmed the Ohio court’s opinion, the ruling also noted a “split of authority” in cases involving FERPA and student athletes and cited a North Carolina judge’s recent ruling that student athletes’ non-academic behavior is not protected.

Part of Clemons’ request was for correspondence between the university and the NCAA about Noel’s status, but the ruling did not specifically address how those records were protected by FERPA.

Thro said the university shared the records with the NCAA because it “was the entity determining whether or not the student was eligible in the educational activity.”

“The attorney general’s office are not the attorneys for the University of Kentucky, and FERPA is quite clear as to which individual’s educational records can be disclosed to,” Thro said. “Certainly it is appropriate to disclose an educational record to someone who is in the position in determining whether or not the individual participates in an educational activity, or whether or not the individual will receive a scholarship or a fellowship or something along those lines.”

Clemons said the paper does not plan to pursue further legal action, but might write a differently worded records request in the future. She also said she felt the decision doesn’t hold the university accountable.

“If they say they can just say ‘no, we can’t give you, the attorney general, any documents,’ how can anybody know what’s going on?” Clemons asked.

“And it’s not just in the athletic department. There is no accountability if the university can deny anyone and everyone the right to even see the records so they can make a decision on whether they can be publicly published.”

By Bailey McGowan, SPLC staff writer. Contact McGowan by email or at (703) 807-1903 ext. 127.