TO BE PUBLISHED

September 8, 1997

In re: Samuel K. Bowerman/Eastern Kentucky University

This is an appeal from Eastern Kentucky University�s response to Samuel K. Bowerman�s August 4, 1997, open meetings complaint. Mr. Bowerman complained that the University�s Housing Appeals Committee "has been and is currently meeting and conducting business in violation of the Open Meetings law," and proposed that the committee remedy these violations by, among other things, complying with KRS 61.805 to KRS 61.850 and establishing procedures for maintaining accurate and detailed records. On behalf of the Housing Appeals Committee, university counsel Giles T. Black denied that the committee violated the law by conducting meetings that are not open to the public. Relying on KRS 61.810(1)(k) and 20 U.S.C. � 1232g, he argued that these meetings must be closed to prevent release of personally identifiable information relating to students. In the alternative, he argued that if 20 U.S.C. � 1232g does not require that the entire meeting be closed, "then KRS 61.815 would permit a closed meeting simply by abiding by the requirements for an executive session." In closing, Mr. Black noted that "higher education, for the most part, is exempt from [KRS 61.846]."

The questions presented in this open meetings appeal are whether the Housing Appeals Committee at Eastern Kentucky University is a public agency for purposes of the Open Meetings Act, and if so, whether the committee is authorized to go into closed session to discuss student housing appeals pursuant to KRS 61.810(1)(k) and 20 U.S.C. Section 1232g. For the reasons which follow, we find that both questions must be answered affirmatively.

In resolving the question of whether the Housing Appeals Committee of Eastern Kentucky University is a public agency subject to the provisions of the Open Meetings Act, we need to examine the definition of "public agency."

The Kentucky Supreme Court concluded in Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 SW2d 884 (1987), that any committee or subcommittee established by a public agency that is created by statute is itself a public agency. However, the Open Meetings Act, particularly KRS 61.805(2), has been substantially amended since then and neither that case nor any subsequently reported court decision has dealt with the extent to which the Open Meetings Act "reaches down through layers of administrative organization to affect the day-to-day administrative work" of university personnel. See OAG 94-25, copy enclosed, at page two.

In OAG 94-25, at page three, we said that the Open Meetings Act is intended to provide public access to meetings of decision-making bodies but it is not intended to provide access to the day-to-day administrative work of a public agency. It was also noted that at some point the level of subdelegation is reached at which the work being done is too remote from the decision making process to invoke the public interest secured by the Open Meetings Act.

To determine whether the entity involved is a public agency we took the definition of "public agency" set forth in KRS 61.805(2)(g) and, in OAG 94-25, determined that the words used in the statute refer to an entity which possesses the following four characteristics:

• its members act as a unit;
• authority has been officially delegated to it;
• its responsibility is to consider, investigate, take action on, or report to a higher authority; and
• specific matters are entrusted to it.

In adopting that definition and applying those characteristics to the situation presented by this appeal, we initially decide that the Housing Appeals Committee of Eastern Kentucky University is a public agency subject to the terms and provisions of the Open Meetings Act (KRS 61.805 to KRS 61.850), and that its meetings are open to the public unless it can invoke an exception to open and public meetings.

Having concluded that the Housing Appeals Committee is a public agency, and that it is subject to the requirement that its meetings must be open to the public, we nevertheless find that pursuant to KRS 61.810(1)(k) and 20 U.S.C. � 1232g it may properly go into closed session to discuss student housing appeals. KRS 61.810(1)(k) authorizes public agencies to close "meetings which federal and state law specifically require to be conducted in privacy." The University argues that the federal Family Educational Rights and Privacy Act, 20 U.S.C. � 1232g, prohibits discussion of personally identifiable information relating to a student, and therefore requires that such discussions be conducted in closed session. We agree.

FERPA regulates access to "education records," meaning records, files, documents, and other related materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. 20 U.S.C. � 1232g(4)(A). The statute precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student�s prior written consent. It is also aimed at insuring the parents of a student, and the student himself if he is over eighteen, access to the student�s education records.

20 U.S.C. � 1232g(b)(1) provides:

It is the opinion of this office that 20 U.S.C. � 1232g(b)(1) bars not only the release of education records, but also the disclosure of personally identifiable information in those records, including information relating to student housing, and specifically housing appeals. Although there are no published decisions supporting this position, it is confirmed by Ellen Campbell, program specialist in the Family Policy Compliance Office of the U.S. Department of Education, the agency charged with interpretation and enforcement of FERPA. Ms. Campbell indicates that her office has concluded that information pertaining to student housing falls within the definition of education records, and therefore cannot be disclosed to third parties in the absence of a parent or eligible student�s prior written consent.

Ms. Campbell also confirms that FERPA restricts discussion of education records and personally identifiable information in those records in a public meeting. She notes that according to the federal regulations implementing FERPA disclosure means "to permit access to or the 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 CFR Part 99.3. Clearly then, public discussion of personally identifiable information, including student housing information, is restricted in the same manner as release of records containing that information. Eastern Kentucky University risks the loss of federal funds if it engages in public discussion of these matters. Pursuant to KRS 61.810(1)(k), the Housing Appeals Committee may properly go into closed session to discuss housing appeals since federal law requires it to do so. See also KRS 160.720(2), the state analogue to the Family Educational Rights and Privacy Act, restricting "release or disclosure of records, reports, or identifiable information on students to third parties other than directory information . . . without parental or eligible student consent."

We note, however, that as an eligible student, that is a student who is eighteen or is attending an institution of postsecondary education, Mr. Bowerman may waive his privacy rights under FERPA by written consent, thus permitting public discussion of his housing appeal pursuant to 20 U.S.C. � 1232 g(d) and 20 U.S.C. � 1232g(b)(1). Obviously, the same is true of any other student who wishes his appeal to be heard in open session, and the University or the appeals committee should so notify the student in advance of his hearing. 34 CFR Part 99.7; 20 U.S.C. � 1232g(e). If, however, Mr. Bowerman�s appeal raises housing issues or evidence concerning other students, the Housing Appeals Committee would be bound by 20 U.S.C. ' 1232g(b)(1) and therefore required to conduct the hearing in closed session.

A party aggrieved by this decision may challenge it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.

ALBERT B. CHANDLER III

ATTORNEY GENERAL

Amye Bensenhaver

Assistant Attorney General

Thomas R. Emerson

Assistant Attorney General

#878

Copies of this decision

have been distributed to:

Samuel K. Bowerman

72 Arrowhead Drive

Berea KY 40403

Giles T. Black

University Counsel

Eastern Kentucky University

352 Stratton Building

Richmond KY 40475-3131