By Becca Clemons

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The Kentucky attorney general’s office has affirmed UK’s decision to deny the Kernel access to records regarding freshman basketball player Nerlens Noel, in a decision received Thursday by the Kernel.

The decision said that “although its original response was procedurally and substantively deficient,” UK could deny the Kernel the records based on FERPA, the Family Educational Rights and Privacy Act, which prohibits disclosure of education records.

The Kernel’s request, for communication among UK and UK Athletics about Noel, including communication with the NCAA, was submitted and denied in late August and appealed to the attorney general shortly thereafter. Reports in August said the NCAA was reviewing Noel’s eligibility to play. The NCAA confirmed in October that Noel was cleared to play.

In the denial, UK’s legal office cited a section of the Kentucky Open Records Act, saying “all preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of a final action of a public agency and preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended are exempt.”

The attorney general’s office notified UK of the appeal on Sept. 14. On Sept. 20, Lexington law firm Sturgill, Turner, Barker & Moloney PLLC sent the office a response, representing UK.

The response cited both the “preliminary records” exemption used in the original denial and violations of FERPA as reasons not to disclose the records. UK originally did not cite FERPA in its denial.

In order to make a decision, the attorney general’s office requested copies of the records to review them but not disclose them, in accordance with state open-records law. The university denied this request, again citing FERPA. The attorney general’s decision cited state law and said that when its office is unable to review the records, its “ability to render a reasoned open-records decision (is) severely impaired.”

Frank LoMonte, director of the Student Press Law Center in Arlington, Va., said that if any of the documents fell under FERPA as education records, they couldn’t be sent to anybody, including the NCAA. If the university had a confidential agreement to release records to the NCAA, it should have extended the same offer to the attorney general’s office.

“I don’t see how the attorney general could possibly be in the position with a blindfold on to make a rational determination here,” LoMonte said. “The right thing to do was to place the burden on the university to show why these documents are exempt from the law. And you can’t satisfy your burden just by saying ‘Trust us,’ but that’s what the attorney general has allowed. I think that the open-records law demands a little more than an explanation saying ‘We promise you these really are confidential.’ There should be a document-by-document individual determination because not all records are created equal.”

Reasons to deny access to the records presented in the law firm’s response included that although the documents were related to Noel’s role as a basketball player, that role is dependent on his role as a student, thus making those documents “education records.”

“A report to the NCAA saying that Joe took a car from a booster is not an education record,” LoMonte said.

In the decision, the attorney general’s office cited a 6th U.S. Circuit Court of Appeals opinion that said records related to an NCAA investigation might be considered education records because of the “plain language of the statute” that defines education records as those that “contain information directly related to a student” and are “maintained by an educational agency or institution.”

It also cited a case, ESPN v. Ohio State University, from earlier this year that denied ESPN access to names of players involved in an NCAA investigation. However, the Supreme Court of Ohio ruled that the company was entitled to redacted versions of the records, and the university provided ESPN more than 700 documents in response to its request. The Kentucky attorney general’s decision said that the disparity between the decision by Ohio State to release records — although some may have included redactions — and UK’s, “may be attributable to the fact that ESPN’s request involved multiple student athletes and the Kernel’s involved only one making the redaction of personally identifiable information impracticable.”

The attorney general’s decision ended by saying that because the office could not review the records, it has to rely on UK’s interpretation of FERPA and on “its professed appreciation for the value of transparency, to ensure that public records are not improperly withheld in the name of student privacy.”

“They’ve got to come forward with a little more than what they did to show why FERPA applies to anything and everything they have,” LoMonte said. “I think the attorney general let the university off way, way too easy here.”