The Kentucky Office of the Attorney General sided with The State Journal in its appeal of an open records denial by Kentucky State University.
In early September, the newspaper requested documents to confirm Anthony Hendrix Jr.’s past attendance and sports participation at the university.
Hendrix died from his injuries in an East Frankfort Park shooting on Labor Day. His photo appeared online as part of KSU’s 2018 football statistics. Frankfort Police confirmed that the photo was the shooting victim.
President M. Christopher Brown II told The State Journal at the time that Hendrix was not a current student at KSU.
According to a policy on the university’s website, KSU says that "directory information," which includes a student’s name, dates of attendance and participation in university recognized organizations and activities is subject to public disclosure. The State Journal will be submitting similar requests for the suspect in the shooting, Justin Cromer, and the person who rented the park that day, Diego Lewis.
In response to The State Journal’s open records request, the university sent a letter on Sept. 11 denying the request because it believed the newspaper wanted to inspect a student’s confidential records. KSU General Counsel Lisa Lang wrote in the letter that the Family Educational Rights and Privacy Act, or FERPA, protects student records from public disclosure.
“Assuming that individual you seek attended KYSU and KYSU was in possession of the records sought, FERPA prohibits KYSU from providing you access to a student’s records without the permission of the student’s parent or student (depending on the student’s age). It is for that reason KYSU must deny your request,” Lang wrote.
Under the Kentucky Open Records Act, any denial of an open records request can be sent to the Office of the Attorney General for review. The office reviews the case and issues an opinion that carries the weight of law.
The State Journal appealed to the attorney general on Sept. 17. The letter cites KSU’s own policy on directory information and explains that FERPA does not protect an individual’s records past their death. The appeal was given to Assistant Attorney General James Herrick for review.
KSU Deputy General Counsel Shuo Han responded to the appeal in a Sept. 27 letter to Herrick, requesting that the appeal be denied on the basis of FERPA's protecting student records.
The State Journal sent a response letter to Herrick on Sept. 30 to repeat that it didn't seek the student’s full records but rather the directory information contained within it.
The Office of the Attorney General on Monday sided with the newspaper.
The written decision says that KSU’s initial response to the request “failed to indicate what, if any, records exist that are responsive to the request.” Under the Open Records Act, a public agency must identify responsive records and then respond to the request and cannot deny based on what a record might contain.
The decision cites KSU’s directory information policy, which says that a student must ask the university to not release the information.
“Nothing in the record indicates that Mr. Hendrix ever opted out of this designation of directory information. As a legal adult, he had the sole right to do so with regard to his own directory information, and evidently he chose not to exercise it,” the decision says. “Accordingly, FERPA does not prohibit disclosure of such information.”
The decision says that The State Journal’s initial request “clearly limits itself to matters designated by KSU as directory information.” The decision noted that Hendrix’s football statistics were published on KSU’s Athletics website.
“It would be ‘somewhat disingenuous’ for KSU to publish this information when it chooses ‘and deny access to the same information in response to an open records request,’” the decision says.
KSU can appeal the decision in Franklin County Circuit Court. University spokesperson Clara Stamps did not return a request for comment.
Former Assistant Attorney General and co-founder of the Kentucky Open Government Coalition Amye Bensenhaver said that the “attempt to shield a former student’s years of attendance” and participation in a university athletic program by way of student privacy “was an exercise in legal futility."
“The University designated this information as ‘directory information,’ which is, by definition, not private," she said. "It squandered public resources defending this frivolous claim. I trust that KSU will not compound this error by seeking review of the attorney general’s decision in the Franklin Circuit Court and squandering additional public resources.”