Kernel appealed UK open-records denial to attorney general

Staff Report

[email protected]

The Kernel is waiting on a response from the Kentucky attorney general’s office regarding an open-records denial from the university.

The open-records request, filed in late August, asked for communication among UK men’s basketball staff or UK Athletics staff who deal with men’s basketball regarding freshman player Nerlens Noel.

UK’s legal office denied the request, citing 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 denial also noted that “this matter is still under review,” although the request did not refer to any matter in particular.

The Courier-Journal in Louisville also requested the same records the day before the Kernel did, but decided not to appeal the denial.

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, the Family Educational Rights and Privacy Act, as reasons not to disclose the records. UK originally did not cite FERPA in its denial.

The Open Records Act includes a time limit on appeals, giving the attorney general 20 days to issue a decision.

The attorney general’s office extended the deadline for a decision by an additional 30 days, to Nov. 29, because of “the need to obtain additional documentation or a copy of the records involved.” The office sent a request to the law firm and UK asking to provide the records for in camera review. Reviewing them in camera means the office would review the records in private, not disclosing them to the public or the press.

Sturgill, Turner, Barker & Moloney issued a response to the attorney general’s office Oct. 16, denying the request on the basis that releasing the records to the attorney general would violate FERPA.

The firm cited an argument made against releasing such records in Texas, which said the attorney general’s office is not an “authorized representative” of the school districts in question and thus would not be eligible to receive education records for in camera review.

FERPA states that education records are defined as records that include information directly related to a student and are maintained by an educational institution.

If an institution violates FERPA, it faces the threat of losing federal funding.

No violation has resulted in a loss of federal funding in FERPA’s almost 40-year history, said Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va.

“FERPA provides for a corrective mechanism,” LoMonte said. “In the event that the Department of Education decides that you gave out records you weren’t supposed to give out, all that happens is that they put you on a plan of correction … where you agree not to do it again.

“Only if you reject the plan of correction can they punish you.”

LoMonte said it is “kind of hypocritical” for universities to claim FERPA for student athletes “because they’re happy to give out FERPA information when it serves their purposes.”

He said universities have student athletes sign FERPA waivers, allowing the department to release information about injuries and other team-related information.

“It’s at least implied in FERPA that the information has to be actually confidential in the first place,” LoMonte said.

He said the law “never intended to cover every scrap of paper that mentions a student” and everything mentioning a student does not fall under the intended meaning of an education record.

The Kernel’s editor-in-chief, Becca Clemons, said the records in question should be open and public because they involve written communication among employees at a public university.

“If the information in the records requested refers to private information about a student, such as test scores, I could understand the denial,” Clemons said. “However, much information about this student has already been published by both UK and the media, with no thought of FERPA violations.”

Records kept by public universities need to be open to inspection to ensure public institutions are not conducting public business behind closed doors, Clemons said, and “this is especially true for records that might already be public.”

Clemons questioned why, if UK is interpreting FERPA to include any records that have any information about a student, it publishes Nerlens Noel’s name on its roster on and in press releases.

Reports in August said the NCAA was reviewing Noel’s eligibility to play. UK head coach John Calipari told ESPN on Oct. 17 that Noel was cleared to play, which the NCAA confirmed to USA Today.