Recent court decision could relate to Kernel’s request for Nerlens Noel’s records

A media law expert said that a recent court decision raises questions about UK’s denial of records that were requested by the Kentucky Kernel last year regarding basketball player Nerlens Noel.

Franklin County Circuit Court ordered Wednesday that National College, a for-profit college based in Lexington, pay fines for failing to comply with a subpoena issued by Attorney General Jack Conway.

The attorney general’s office was seeking certain records from the college but was denied based on FERPA, the Family Educational Rights and Privacy Act, which prohibits disclosure of education records.

The Kernel was denied different records in 2012 based on the same law.

Frank LoMonte, director of the Student Press Law Center in Arlington, Va., said based on this case, the attorney general would have a stronger argument in demanding records that the Kernel sought last year.

“I think that (the university) would have a hard time saying that they don’t have to honor the request,” LoMonte said.

However, it does not set legally binding precedents, he said, and another judge could conclude differently.

“It was wrong from the start to deny the opportunity on the basis of FERPA anyway, and this ruling confirms that,” he said.

In light of the recent court order, the Kentucky Kernel will submit a similar request that it did in 2012, regarding communications about Noel’s NCAA eligibility to play, said Kernel editor-in-chief Rachel Aretakis.

Noel, who now plays professionally for the Philadelphia 76ers, had been under NCAA investigation, a common occurrence for high-profile recruits.

In late August 2012, the Kernel requested records concerning communication among UK and UK Athletics about Noel, but was denied. The university cited the records were all educational.

Former Kernel editor-in-chief Becca Clemons appealed the decision to the attorney general.

In order to make a decision, the attorney general’s office requested copies of the records to review but not disclose them, in accordance with state open-records law. The university denied this request, again citing FERPA.

In December of 2012, the attorney general’s office affirmed that UK did not have to provide records based on FERPA.

“The fact is, I didn’t know what kind of records there were,” Clemons said. “I wasn’t going at anything in particular. I thought it would be interesting to look at an NCAA investigation.”

Clemons said she thinks the judge’s decision regarding National College is a good example of the right way to deal with FERPA.

“FERPA should not be used as a blanket to deny anything that has to do with the students at a university,” Clemons said.

She disagrees with the way the university cited FERPA because plenty of information about student-athletes can be found on UK’s website. Not all information related to a student constitutes an education record, she said, such as police reports when a student is charged with a crime.

UK spokesman Jay Blanton said he doesn’t know the circumstances of the National College case and cannot speak to its meaning regarding UK.

“We always consider each open records request on its merits and try to act according to the law as we understand it,” he said.

Based on the National College decision, LoMonte said records can be shared with a government organization if there is a nondisclosure agreement. In other words, the attorney general could look at the university records and decide if they fall under FERPA.

“It’s an encouraging sign that this is how the courts of Kentucky would resolve that issue if it ever became a subject of a lawsuit,” he said. “It shows that there is a perfectly reasonable way to share these records without committing a FERPA violation.”

 

STAFF REPORT