Court Affirms Privacy of Student Records

Sturgill Turner’s Higher Education Law Team secured a win in Fayette Circuit Court Monday, January 23, when Judge Thomas Clark issued an opinion reversing the Attorney General’s Open Records Decision In re Lexington Kernel/University of Kentucky, 16-ORD-161 (2016) on two grounds.

First, Judge Clark ruled that the records in question directly relate to students and therefore are education records protected from public disclosure under the Family Educational Rights and Privacy Act or “FERPA”. FERPA is a federal law enacted by Congress “to protect the privacy interests of students by prohibiting the release of education records or personally identifiable information contained therein without consent.” FERPA is incorporated into the Kentucky Open Records Act under an exception found in KRS 61.878(1)(k). Judge Clark specifically found that the records are education records even though they relate to a former professor because they also directly relate to students who claim to have experienced the conduct described in the records.

Secondly, Judge Clark ruled that the records cannot be reasonably redacted to protect the privacy rights of the complaining student witnesses. Although the records in question contained some information that could be easily redacted (names, addresses, phone numbers, etc.), the details of the alleged assaults are “so extensively laced” with other information that redaction alone would not protect the students. Judge Clark looked at the totality of the specific facts and concluded that the identities of the witnesses would be known with reasonable certainty, even if the records are turned over in redacted form.

This decision is not final and the Kentucky Kernel has stated it intends to appeal Judge Clark’s ruling.