FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

KEVIN W. BETZ    ELLEN E. BOSHKOFF
Betz & Associates     SCOTT D. HIMSEL
Indianapolis, Indiana    Baker & Daniels
            Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE:

STEPHEN A. KEY
The Hoosier State Press Association
Foundation
Indianapolis, Indiana

AN UNINCORPORATED OPERATING          )

DIVISION OF INDIANA NEWSPAPERS, INC.,     )
INDIANA CORPORATION d/b/a                 )
THE INDIANAPOLIS STAR,                    )
                                          )
Appellant-Plaintiff,                      )
                                          )
vs.                                       )    No. 53A04-0112-CV-527
                                          )
THE TRUSTEES OF INDIANA UNIVERSITY,       )
                                          )
Appellees-Defendants.                     )

II.    Whether the materials sought are deliberative materials excepted from public disclosure requirements;

III.    Whether the materials sought are required to be disclosed by statute; and

IV.    Whether the Trustees’ public release of certain information precludes them from claiming any exceptions to the public disclosure statute.

We affirm in part, reverse in part, and remand.
The facts in the light most favorable to the non-moving party reveal that in March of 2000, Neil Reed, a former student basketball player for Indiana University, appeared on a television program and accused then-Indiana University basketball coach Bob Knight of inappropriate behavior, including choking Reed during basketball practice. Shortly following these allegations, a videotape surfaced which showed Knight extending his arm and contacting or grabbing Reed by the throat during a taped practice session. In response to these events, Indiana University President Myles Brand appointed University Trustees Frederick Eichhorn and John Walda to investigate the veracity of the allegations. Eichhorn and Walda were specifically given the task of investigating the following: the alleged choking of and other abuses directed toward Reed; whether Knight verbally abused Brand and removed him from a session of basketball practice; an incident in which Knight allegedly displayed soiled toilet paper to members of the basketball team; and any other allegations which might arise during the course of the investigation.
Walda hired a videotape expert and a private investigator to assist in the investigation. During the investigation, although not directed by Brand to do so, Eichhorn and Walda produced several documents which are at issue in the present case. These documents consist of letters summarizing witness interviews, transcripts of interviews, notes taken during interviews, a letter from a witness, a memorandum prepared at Walda’s request by a former student regarding Reed’s allegations, and a document consisting of the names of witnesses for the Reed investigation, including notes made by the private investigator. Although variously referred to by the parties as the Knight Disciplinary Records, or the Reed Investigatory Materials, we will refer to the material produced as part of the investigation of Reed’s allegations as the “Reed materials.”
On May 3, 2000, Eichhorn and Walda met with Brand in Bloomington and gave an oral report of the investigation, drawing in part upon information contained in the Reed materials. On May 14, 2000, Brand met with other Trustees, including Eichhorn and Walda, where, based in part upon the Reed materials, information concerning the investigation was again relayed.
On May 15, 2000, based in part upon the information he had received as a result of the investigation, Brand decided to discipline and sanction Knight and announced this decision in a televised press conference. In addition to a fine and suspension, Brand imposed what was termed a “zero-tolerance” policy which prohibited “inappropriate physical contact” by Knight. Eichhorn and Walda prepared a “Summary Report of the Trustee Review Regarding Neil Reed Allegations Concerning the Conduct of Coach Bob Knight” which reviewed the findings and conclusions of the Reed investigation. The University also drafted a document titled “Knight Sanctions” which also summarized the findings and conclusions of the investigation and announced the sanctions imposed upon Knight. The Knight Sanctions were released to the public. Brand also created a Code of Conduct Commission to “look at the general set of issues surrounding employment and ethical approaches by coaches, student athletes, athletic directors, or anyone to do with athletics, as well as to coordinate the various codes of conduct that already existed.” Appellant’s Appendix at 34.
In September of 2000, the Vice President of Public Affairs for Indiana University Christopher Simpson informed Brand that a freshman student had made allegations that Knight had inappropriate physical contact with the student. Brand then asked the University’s chief counsel, Dottie Frapwell, to investigate the allegations. Frapwell instructed James Kennedy to direct the Indiana University Police Department (“IUPD”) to investigate the freshman student’s allegations, which “sounded like it could be a battery . . . .” Appellant’s App. at 145. IUPD interviewed several witnesses, including the student and Knight. We will refer to the materials generated in this investigation as the “IUPD materials.” These materials are maintained by IUPD and are not physically kept in Knight’s personnel file. Following the investigation, Brand held a meeting at his residence in Bloomington with Eichhorn, Frapwell, Kennedy, Simpson, Vice President Terry Clapacs, Bill Stephan, and Brand’s wife, Peg Brand, See footnote concerning the IUPD investigation. At this meeting, the information garnered during the IUPD investigation was relayed to Brand. The information contained in the IUPD materials was a factor supporting the decision to terminate Knight’s employment. The IUPD materials were turned over to the Monroe County Prosecutor’s Office, which decided not to file any criminal charges.
During a televised press conference on September 10, 2000, Brand announced the decision to terminate Knight. The University also publicly issued two documents, entitled “Remarks of President Myles Brand,” and “IU announces removal of Basketball Coach Bob Knight.”
During the Reed investigation, the Star made ten requests for access to records maintained by the Trustees, and the Trustees produced over forty documents in response thereto. On May 18, 2000, the Star requested, pursuant to the Indiana Access to Public Records Act (“APRA”),See footnote “copies of any notes taken during the course of the [Reed] investigation, information gathered during the course of the investigation and reports written as a result of the investigation.” Appellee’s App. at 13. In response, the Trustees produced the “Summary Report” but denied access to the Reed materials. In doing so, the Trustees claimed that the Reed materials were attorney work productSee footnote and also protected by various exceptions to the general policy of disclosure as provided in APRA. After the Trustees denied the Star’s request for access, the Star filed a complaint with the Office of the Public Access Counselor,See footnote in which it inquired as to whether the Trustees had waived any of the claimed exceptions to public access.See footnote The informal opinion of the Access Counselor’s Office was that, based upon the circumstances under which the Trustees had disclosed the Summary Report to the media and the public, the Trustees had not waived the APRA exceptions upon which it based its withholding of the Reed materials.
On October 16, 2000, the Star made a request for access to Knight’s personnel file.See footnote In response, the Trustees produced “all documents to which the Star was entitled, including President Brand’s September 11, 2000, letter removing Knight,” but denied access to the IUPD materials. Appellee’s App. at 10. The Star again filed an inquiry with the Access Counselor’s Office, but the Office declined to issue another advisory opinion.
On January 2, 2001, in response to the Trustees’ denial of access, the Star filed a complaint alleging a violation of APRA by the Trustees and seeking access to the Reed and IUPD materials. On March 2, 2001, the Trustees moved for summary judgment. The Star filed its response to this motion on July 3, 2001. The Trustees filed a reply to the Star’s response on August 7, 2001, and the Star filed a sur-reply on August 10, 2001. Also on August 10, 2001, the trial court held a hearing on the summary judgment motion. The trial court reviewed in camera the disputed materials. Thereafter, on November 5, 2001, the trial court granted summary judgment in favor of the Trustees, denying the Star access to the disputed materials. The trial court’s order also contained specific findings of fact and conclusions of law. The Star filed its Notice of Appeal on December 3, 2001.

Section 6(a) of APRA provides, “If a public record contains discloseable and nondiscloseable information, the public agency shall, upon receipt of a request under this chapter, separate the material that may be disclosed and make it available for inspection and copying.” Ind. Code § 5-14-3-6(a) (Burns Code Ed. Repl. 2001) (emphasis supplied). See footnote See also Heltzel v. Thomas, 516 N.E.2d 103, 106 (Ind. Ct. App. 1987) (noting the mandatory nature of I.C. § 5-14-3-6), trans. denied. In the present case, the trial court viewed the records in question in camera as authorized by section 9(g) and determined, as a matter of law, that the records were excepted from public disclosure for various reasons, which the Star now challenges. Although we must liberally construe APRA to implement its policy of public access, we cannot contravene or ignore the specific exceptions to disclosure specified by the legislature. See Heltzel, 516 N.E.2d at 106.

The Star argues in its reply brief that the Reed materials are maintained by Trustees Eichhorn and Walda, not by the University, and that the Reed materials are therefore not education records as defined by FERPA. Although the Reed materials are not maintained by a central custodian, Falvo should not be read to mean that all records not maintained by a registrar or central custodian cannot be education records. Otherwise there would have been little reason for the Court to mention that a person “acting for” the school connoted agents of the school such as teachers, administrators, and other employees. Here, Eichhorn and Walda, who are University Trustees, were instructed by the President of the University to conduct the Reed investigation and collected the Reed materials as a result. Eichhorn and Walda were clearly acting for the University in maintaining these materials.
This leads us to the issue of whether the Reed materials contain information directly related to a student. The Star cites Miami Student, supra, to support its argument that the Reed materials do not. In Miami Student, the Ohio Supreme Court held that university student disciplinary records were not education records under FERPA, and therefore not exempt from Ohio’s Public Records Act, which, like APRA, excluded from the definition of public records those records prohibited to be released by state or federal law. See 680 N.E.2d at 170 (citing Ohio Rev. Code Ann. § 149.43). The court stated that the disciplinary records sought were non-academic in nature and did not contain educationally related information such as grades, academic data, scholastic performance, or financial aid information. Id. at 171-72. Therefore, the court held that the records were not education records for purposes of FERPA.
In Miami Student, the newspaper seeking access to the records had, in its requests for access, not sought disclosure of personal information such as names, Social Security numbers, student identification numbers, or other information which conveyed the identity of the accused or convicted party. The university had deleted this information along with the age and sex of the students charged, the dates, times, and location of the alleged incidents, and the disposition of certain proceedings. The court held that the university could properly delete from the disclosed records the student’s name, Social Security number, student identification number, and the exact date and time of the alleged incident, as this could lead to the identity of the student. Id. at 172. The court held that the university must disclose “the general location of the incident, the age and sex of the student (which does not identify the student), the nature of the offense, and the type of disciplinary penalty imposed.” Id.
The Trustees claim that the Miami Student case is no longer valid precedent, and cite Miami University, supra, for support. The Miami University case arose out of the circumstances following the Ohio Supreme Court’s decision in Miami Student. Following the Miami Student decision, “The Chronicle of Higher Education” sought disciplinary records from both Miami University and Ohio State University. However, unlike the newspaper in Miami Student, the Chronicle requested the records with names intact and minimal redaction. Upon receipt of the request, Miami University contacted the federal Department of Education (“DOE”) to inform the DOE that it might not be able to comply with FERPA. The DOE informed Miami University that the Ohio Supreme Court was incorrect in holding that disciplinary records were not education records. When the DOE learned that the universities planned to comply with the Chronicle’s requests, it sought declaratory and injunctive relief in federal court. The District Court granted the DOE’s motion for summary judgment and permanently enjoined the universities from releasing student disciplinary records in violation of FERPA. Miami Univ., 91 F.Supp.2d 1132, 1160 (S.D. Ohio 2000).
Upon appeal, the Sixth Circuit Court of Appeals affirmed the District Court and held that the Ohio Public Records Act and FERPA could coexist. Miami Univ., 294 F.3d at 811. Here, the Trustees claim that the Miami Student case is no longer valid precedent. To be sure, the District Court criticized and disagreed with the Ohio Supreme Court’s conclusion that student disciplinary records were not education records. Miami Univ., 91 F.Supp.2d at 1149 n.17. The Sixth Circuit Court of Appeals also agreed that student disciplinary records were education records. Miami Univ., 294 F.3d at 812. Nevertheless, it distinguished the situation before it and the one which was before the Ohio Supreme Court:
“We assume that the rights and responsibilities established in [the Miami Student] case were satisfied long ago. Unlike the case at bar, the editors in the Miami case permitted Miami to redact significantly the student disciplinary records prior to disclosure and, in its mandamus, the Ohio Supreme Court expanded the list of items that Miami could redact. After concluding that student disciplinary records were not ‘education records,’ the Court still permitted Miami to redact the following ‘personally identifiable information’ in accord with the FERPA: the student’s name; Social Security Number; student identification number; and the exact date and time of the alleged incident. With these court-imposed redactions, the mandamus appears to comport with the FERPA's requirements.
        In the case sub judice, The Chronicle seeks records fraught with personally identifiable information and virtually untainted by redaction. Given the vast difference in the records sought by The Chronicle, it is by no means clear that the [Miami Student] case would support, without exception, the release of those records.” Id. at 811 (emphasis supplied) (citations omitted).

The Sixth Circuit then upheld the permanent injunction issued by the District Court. The Court also relied upon a conclusion reached by the DOE in 1995 that “all disciplinary records, including those related to non-academic or criminal misconduct by students, are ‘education records’ subject to FERPA.” Id. at 813 n.14.
From this, we can discern that the Sixth Circuit disagreed with the Ohio Supreme Court’s narrow definition of education records, and that according to the Sixth Circuit and the DOE, student disciplinary records are education records which must remain confidential pursuant to FERPA. However, we find it significant that the court in Miami University observed that the result of the Ohio Supreme Court’s opinion, i.e. the mandamus requiring the school to release the redacted disciplinary records, appeared to comport with the requirements of FERPA. See id. at 811.
If student disciplinary records are education records under FERPA, and the result of the Miami Student decision, i.e. the release of redacted student disciplinary records, comports with FERPA’s requirements, then one may logically conclude that the redacted student disciplinary records in the Miami Student case were not “education records” for purposes of FERPA, but that the un-redacted student disciplinary records in the Miami University case were. In other words, with all identifying information redacted from the student disciplinary records, they no longer “contain[ed] information directly related to a student” or “personally identifiable information” of a student. 20 U.S.C. §§ 1232g(a)(4)(A)(i), 1232g(b)(1).
With this in mind, we return to the question of whether the Reed materials are education records protected by FERPA. We recognize that the records at issue in both Miami Student and Miami University were student disciplinary records, whereas the materials at issue in the present case relate to Knight, a University employee. Nevertheless, to the extent that the Reed materials contain information directly relating to students, their non-consensual disclosure would be a violation of FERPA.
However, we also must consider the effects that redaction might have upon the materials. See footnote The Trustees claim that, because FERPA contains no provision for redaction of education records, redaction is prohibited. Indeed, the Trustees go so far as to suggest that if a 1000 page document consisting of otherwise discloseable material contained one line regarding a student’s grade, then the entire 1000 page document must be withheld pursuant to FERPA. We reject such an interpretation.
Although FERPA contains no redaction provision, neither does it prohibit such. Moreover, the Sixth Circuit gave tacit approval to the redaction of student records in the Miami University case. 294 F.3d at 811. APRA permits redaction in that it specifically mandates separation of discloseable from non-discloseable information contained in public records containing both. I.C. § 5-14-3-6(a). Therefore, if a public record contains some information which qualifies under an exception to public disclosure, instead of denying access to the record as a whole, public agencies must redact or otherwise separate those portions of the record which would otherwise render it non-discloseable.
In the case at bar, the trial court concluded that the Reed materials were non-discloseable due to the fact that the materials referenced current or former students of Indiana University. However, from the trial court’s order it is unclear whether the trial court considered the possibility of redaction. In fact, given the Trustees’ arguments that redaction was not permitted by FERPA, it appears the trial court did not consider redaction. Although we do not have the Reed materials before us, the record does contain the Trustees’ “document log” which lists each document gathered during the Reed investigation, along with a brief description of its contents and the reasons the Trustees felt the document to be non-discloseable. This log indicates that some of the Reed materials likely contain little or no information directly relating to students.
For example, the log lists “Notes of telephone interview with Indiana University Athletic Department staff member regarding alleged altercation by Knight against that staff member.” Appellant’s App. at 17. Certainly the brunt of this interview relates to an altercation between Knight and the University employee, and if any information that could lead to the identification of a current or former student were to be redacted, these interview notes would, as a matter of law, not be education records and not protected by FERPA. The document log also lists “Notes of telephone call with video expert regarding expert’s opinions about Reed’s allegations based upon expert’s study and review of videotape of Indiana University basketball practice.” Id. at 18. Again, if identifiable student information were to be redacted from these notes, we are unable to see how they would be education records protected by FERPA. Yet another entry in the document log is “Notes of telephone interview with staff member of IU Athletic Department regarding whether Knight choked Reed, displayed soiled toilet paper to players, ejected Brand from practice, and engaged in other misconduct.” Id. We might reasonably presume that portions of these notes would include identifiable student information. However, the portion regarding the alleged incident with Knight and President Brand would not necessarily include any student information, and, if these notes were properly redacted to eliminate any identifiable student information, they would not be protected by FERPA.
Therefore, we instruct the trial court upon remand to review the Reed materials and redact or otherwise separate any portion of these documents which might contain information that could identify any present or former students in violation of the confidentiality mandated by FERPA. See footnote In such a way, the Star would have access, albeit limited by redaction, to the materials it seeks pursuant to APRA, and the Trustees would protect the privacy of student information in accordance with FERPA. The Trustees claim that such redaction is impossible, in that the interviews by their very nature will give away the identity of the students involved. However, as discussed above, there are several examples in the document log which belie this argument. We nonetheless emphasize that any information which could lead to the identity of former or present students of Indiana University must be redacted. Whether or not this limits the intelligibility of the documents, this is what is required by APRA and FERPA.
Of course, the Trustees also claim that the Reed materials are protected by the “deliberative materials” exception to APRA. We do not address here whether the Reed materials are protected from disclosure under that provision, but instead simply hold that these materials, properly redacted, would not be protected education records under FERPA.

The court also held that several other documents requested by the Journal Gazette were protected deliberative materials—specifically, documents regarding two specific allegations made against Purdue athletes, a letter received by Purdue containing allegations of NCAA violations, and documents received by Purdue regarding NCAA violations reported to Purdue but not to the NCAA. The court held that testimony had sufficiently “establish[ed] the nature of the documents and that they were used for a decision making purpose. Additionally, there [was] ample testimony that the contents of the documents consist[ed] of opinions and speculation of an NCAA violation.” Id. at 831.
Lastly, the Journal Gazette court held that invoice vouchers gathered by Purdue’s athletic department as part of its investigation into the alleged NCAA violation, were protected from disclosure because they were “collected and retained by the athletic department as part of its investigation of alleged NCAA violations and are therefore covered by the (b)(6) exception.” Id. at 831-32.
The Trustees claim that the situation before us is the same as that before the court in Journal Gazette, i.e., that the Reed materials concern whether Knight treated basketball players “unfairly” or “improperly,” and are speculative or matters of opinion by their very nature. To the extent that the Reed materials contain such speculation or opinion, we agree. We note, however, that the trial court’s findings and conclusions state that, “The Reed Investigatory Documents are ‘deliberative material’ which contain expressions of opinion, have some speculative material and/or opinions, and were to be ‘communicated for the purpose of decision making’ to President Brand concerning Coach Knight.” Appellant’s App. at 14 (emphasis supplied). We recognize that the trial court’s findings and conclusions are not binding upon appeal. Nevertheless, by stating that the Reed materials contained “some” speculative material and/or expressions of opinion, a negative inference can be drawn that “some” of the Reed materials do not contain such. This inference is supported by a review of the Trustees’ document log, which also indicates that portions of the Reed materials concern factual matters. For example, several of the documents in the log relate to the interviewees’ knowledge of whether Knight removed Brand from a session of basketball practice. This incident either did or did not happen; whether this incident occurred is a factual matter, not opinion or speculation. On the other hand, a witness’s opinion as to whether Knight engaged in “misconduct” would seem to be speculative in nature or contain expressions of opinion.
The question remains as to what to do with this combination of factual matters and deliberative materials. The Trustees would have us declare an entire document non-discloseable based upon the fact that it contains some speculative material or expressions of opinion. The Journal Gazette opinion could be read to support such a position, in that the court held that it was “not necessary for Purdue to specifically prove the exception for each individual document. The documents were requested as a whole or a group: those dealing with NCAA violations, and no document in this group did not fall under this category.” 698 N.E.2d at 831.
However, section 6 of APRA requires a public agency to separate discloseable from non-discloseable information contained in public records. I.C. § 5-14-3-6(a). By stating that agencies are required to separate “information” contained in public records, the legislature has signaled an intention to allow public access to whatever portions of a public record are not protected from disclosure by an applicable exception. To permit an agency to establish that a given document, or even a portion thereof, is non-discloseable simply by proving that some of the documents in a group of similarly requested items are non-discloseable would frustrate this purpose and be contrary to section 6. To the extent that the Journal Gazette case suggests otherwise, we respectfully decline to follow it. See footnote
Instead, we agree with the reasoning of the United States Supreme Court in Mink, supra, i.e., that those factual matters which are not inextricably linked with other non-discloseable materials, should not be protected from public disclosure. See 410 U.S. at 92. Consistent with the mandate of APRA section 6, any factual information which can be thus separated from the non-discloseable matters must be made available for public access.
We therefore instruct the trial court to review the Reed materials in camera and determine what portions of the Reed materials contain factual materials not inextricably linked to non-discloseable materials and allow the Star access to such factual materials. Of course, this separation or redaction must be done in addition to that which would remove any protected student information pursuant to our conclusion in Part III.
In response to an argument presented by amicus curiae, See footnote the Trustees claim that confidentiality was promised to many of the witnesses interviewed, and any breach of this confidentiality by disclosing the Reed materials might chill future internal investigations for fear of exposure or reprisals. We recognize this as a legitimate concern. However, the Trustees do not refer us to any provision or precedent, nor does our review of section 4 reveal, that public records are non-discloseable simply because a public agency promised or indicated to a witness that the information gathered would remain confidential.
Be that as it may, we have already concluded that any identifiable student information must be redacted from the Reed materials before the Star may have access to them. As many of the interviewees were students, this would lessen the Trustees’ concerns of violating promises of confidentiality. In addition, because the IUPD materials are non-discloseable, the information gathered during the IUPD investigation will remain confidential. Also, the Trustees argued to the trial court that the Reed materials were non-discloseable attorney work product. See I.C. § 5-14-3-4(b)(2). Our conclusion that some portions of the Reed materials are discloseable will require the trial court to determine the one genuine issue of material fact it found—whether Eichhorn and Walda were acting as attorneys for Indiana University when they conducted the Reed investigation. If they were, those materials which we hold today are not protected by the exceptions at issue before us might nevertheless be non-discloseable attorney work product.

The Court thus concluded that the memorandum had lost any exempt status due to the fact that it had been expressly relied upon and quoted. Id.
The Star claims that the reasoning contained in the Reed materials was expressly adopted and/or incorporated into documents which were publicly available and represented final decisions. The Star does not explain why the holdings of these FOIA cases should apply to APRA, and after examination of the appropriate section of APRA, we decline to apply this doctrine in the present case. Be that as it may, even if we were inclined to adopt this incorporation/adoption doctrine from these federal cases, the Star would still not prevail because none of the publicly released materials referred to by the Star expressly incorporate or adopt the Reed materials.
As discussed in full below, the Summary Report and Knight Sanctions documents are generalized descriptions of the investigation and the conclusions drawn therefrom. The statement announcing the sanctions to the press merely says that the investigation “found a pattern of inappropriate behavior.” Appellant’s App. at 206. The Statement of Principles on the Conduct of Participants in Student Athletic Programs, though perhaps drafted in response to the circumstances surrounding the Knight investigations, makes no direct mention thereof.
This is in contrast to the situation in Niemeier, wherein the final decision involved:
“more than the mere quotation of a legal memorandum . . . but also the statement that the Special Prosecutor’s decision was consistent with the conclusions reached by Mr. Lacovara and thereby gained support therefrom. Moreover, the [Special Prosecutor’s] Report contains the statement that the memorandum was on file in the office of the Special Prosecutor. These circumstances imply that scrutiny of the memorandum as a whole is invited in order to assess the strength of the reasoning that was behind the quoted legal conclusions.” 565 F.2d at 973.

We reject the Star’s notion that any publicly released document which arose out of the investigation pierces any applicable disclosure exception. The trial court did not err by failing to consider whether the Reed materials were expressly incorporated or adopted by the Trustees’ final decision.

These press releases represent general summations of the IUPD investigation, not a selective disclosure to another party or the public sufficient to constitute waiver of APRA’s disclosure exceptions vis-à-vis the IUPD materials. Therefore, the trial court did not err in concluding that the Trustees did not waive any relevant APRA disclosure exception.