OAG 93-3


January 27, 1993




Mr. Clinton R. Riley

Kentucky Intercollegiate Press Association

117 Donovan Annex

Eastern Kentucky University

Richmond, Kentucky 40475

Dear Mr. Riley:

You have requested an opinion from the Attorney General on an issue relating to the Kentucky Open Records Act. Specifically, you ask that this Office overrule OAG 90-24, in which we held that the records of the Murray State University Office of Public Safety are "education records" within the meaning of 20 U.S.C. § 1232g(b)(1), the Federal Educational Rights and Privacy Act of 1974, also known as the Buckley Amendment, and that those records were properly withheld from public inspection. In addition, you ask that we adopt the reasoning of the Missouri federal district court in Bauer v. Kincaid, 759 F.Supp. 575 (W.D.Mo.1991). In Bauer, the court held that the Buckley Amendment did not prohibit the release of criminal investigation and incident reports prepared by the Southwest Missouri State University Safety and Security Department. You note that "[d]espite the current ruling by [this] Office that the records fall under the protection of the Buckley Amendment, some universities release the records while others do not." Continuing, you express the belief that in light of the Bauer decision, "a new opinion should be issued making police records at all state universities and colleges open records."

While we are not persuaded by the court's reasoning in Bauer v. Kincaid, supra, we find that recent changes in the federal law mandate a different rule than that announced in OAG 90-24. Accordingly, that opinion is overruled to the extent that it is inconsistent with the discussion which follows.

The Buckley Amendment, which applies to all schools which receive funds under an applicable program from the United States Department of Education, was enacted by Congress in 1974 to protect a student's or a student's family's interest in the privacy and accuracy of education records about the student. The Amendment gives parents and eligible students, meaning students who have reached the age of eighteen or who are attending any school beyond the high school level, the right to inspect all of the student's education records maintained by the school, and the right to request that a school correct records believed to be inaccurate or misleading. "Education record" is broadly defined to include all records which "contain information directly related to a student." 20 U.S.C. § 1232g(a)(4)(A)(i). The Amendment also imposes a penalty on schools for the disclosure of education records without the written consent of the parent or eligible student, subject to certain exceptions.

As originally enacted, the term "education record" specifically excluded:

(ii) [i]f the personnel of a law enforcement unit do not have access to education records under subsection (b)(1) of this section [relating to the availability of education records to other school officials], the records and documents of such law enforcement unit which[:] (I) are kept apart from records described in subparagraph (A) [relating to education records generally], (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[.]

This exception was interpreted to exclude the records of a campus law enforcement unit from the application of the Buckley Amendment as long as the unit's personnel did not have access to education records, and the unit's records were maintained solely for law enforcement purposes, were segregated from the other records of the agency or institution, and were made available only to law enforcement officials of the same jurisdiction. Records which did not satisfy these conditions were treated as education records, and were subject to the Buckley Amendment. Hence, in OAG 90-24, we held that the records of the Murray State University Office of public safety were not maintained in such a way that they could be said to fall within the law enforcement unit exception of the Buckley Amendment.(1)



Bauer v. Kincaid, supra, typified the potential conflicts between the Buckley Amendment and state Freedom of Information statutes. Most public educational institutions were subject to both Buckley and state public records laws. Under some state laws the records of a campus law enforcement unit were not exempt from disclosure. Such institutions risked the loss of federal education funds if they elected to comply with state law. In Bauer, supra, the Missouri District Court held that the Buckley Amendment did not protect from disclosure criminal investigation and incident reports maintained by university police departments for law enforcement purposes, reasoning that an individual's enrollment at a state university should not entitle him or her to any greater privacy rights than members of the general public when the privacy interest relates to criminal investigation and incident reports.

In 1992, Congress amended 20 U.S.C. 1232g(a)(4)(B)(ii) in response to this problem. As enacted on July 23, 1992, the law now excludes from the definition of "education records":

(ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.

In a letter to Vice-President Dan Quayle dated July 11, 1991, the Secretary of the United States Department of Education, LaMar Alexander, discussed the amendment:

This bill would address ... [the problems confronting public educational institutions] by amending the provision of the Buckley Amendment that exempts the records of a campus law enforcement unit from the definition of education records by eliminating the current, unworkable firewall restrictions and focusing instead on the nature of the record. This bill would exempt any record maintained by a law enforcement unit that was created by that unit for a law enforcement purpose. The bill would neither require nor prohibit the release of such records, but would allow the choice to be made in light of local law and policy. Further, the amendment would lighten the burden on schools because it eliminates the need for schools to segregate campus law enforcement records from other school records. Thus, as appropriate, the law enforcement unit could share records with the campus disciplinary unit (or any other component of the institution) and vice versa.

By enacting 20 U.S.C. 1232g(a)(4)(B)(ii), Congress eliminated this lingering conflict.

In view of this amendment to the Family Educational Rights and Privacy Act of 1974, we believe that OAG 90-24 must be, and hereby is, overruled. Records of a campus law enforcement unit maintained by the unit for the purpose of law enforcement are no longer subject to the federal law, but are instead governed by the Kentucky Open Records Law.

Sincerely,

Chris Gorman

Attorney General





Amye B. Majors

Assistant Attorney General

1. At p. 10 of that opinion, we observed:

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, etc., 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(1)(4)(B)(ii)(III), . . .). In other words, records of the Murray State University public safety office cannot be said to be 'maintained solely for law enforcement purposes.'