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.'