Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Pulaski County Schools' denial of John Frith Stewart's open records request for a copy of an investigative report relating to an incident involving his client, Donna Taylor, a teacher in the Pulaski County Schools system.
On August 12, 1998, Donna Taylor made an open records request to the Pulaski County Schools for any records in the possession of the Pulaski County Board of Education relating to her.
By letter dated August 19, 1998, Larry G. Bryson, counsel for the Pulaski County Schools, responded to Ms. Taylor's request by identifying certain records which she might be seeking and requested that she be more specific as to the particular records she was requesting. In this respect, in numbered paragraph 2 of his response, Mr. Bryson stated:
2. If you are requesting copies of the letters of complaint from parents, very candidly, other issues concern me. I will research the propriety of releasing information that might violate the federally protected rights of students (pursuant to FERPA), although I can probably remove personally identifiable information that would satisfy this request. KRS 61.878 specifically states that public records or information that is prohibited by federal law or regulation cannot be disclosed. If information in that form will not satisfy your request (if you are requesting this information), please let me know, and I can respond to that. It is my understanding that the Kentucky Supreme Court has recognized that parties who are affected by the release of this sort of information have a "privacy right" and should be notified of the potential release of this information, so that they have an opportunity to challenge this in court. Beckham v. Bd. of Ed. of Jefferson County, Ky., 873 S.W.2d 575 (1994).
By letter dated August 26, 1998, John Frith Stewart, counsel for Ms. Taylor, clarified her request by asking for a copy of Ms. Taylor's personnel file. He further stated that his client was unaware of what documents the school system had, but wanted all information requested. Particularly, Mr. Stewart stated that his client was unaware of complaints from parents other than the petition and one page cover letter which were provided her, and she was entitled to all the other records pursuant to KRS 61.878(3).
By letter dated August 28, 1998, Mr. Bryson provided Mr. Stewart with a complete copy of Ms. Taylor's personnel file and a copy of much of the information he had requested. However, he withheld release of certain records, which he identified and explained as follows:
The information that I am not releasing to you are (1) the names of parents and students, which I believe is "identifiable information on students," (2) there is also a report of an investigative committee appointed by the Superintendent to investigate this matter when it was reported to him. The language of KRS prohibits the release of "reports" or identifiable information regarding students.
In his letter of appeal, Mr. Stewart stated that, pursuant to KRS 61.878(3), Ms. Taylor, as an employee of the school, was entitled to a copy of any records that related to her, including the investigative report since the investigation was now completed. He advised that a decision was made by the Kentucky Education Professional Standards Board on June 24, 1998, to dismiss without prejudice the allegations against Ms. Taylor. He indicated that a copy of the investigative report with the names of students and parents redacted would be acceptable.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. Stewart's letter to the Pulaski County Schools. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Bryson, by letter dated September 14, 1998, provided this office with a response to the issues raised in the appeal. In his response, Mr. Bryson stated, in part:
In my letter to Attorney John Frith Stewart, with attachments, dated August 28, 1998, I noted:
Mr. Bryson indicated that the school system was not releasing the report since it contained the names of students and parents and was prohibited from being released by KRS 160.720. He further explained:
There were several "petitions" that were a part of the report, and this petition contained parent names and student names, with addresses and telephone numbers, all of which I considered to personally identifiable information. KRS 160.990 states criminal penalties for the release of this information.
The Family Educational Rights and Privacy Act of 1994 (FERPA), 20 USC Section 1232g, et seq. , and the Kentucky Family Education Rights and Privacy Act (KFERPA), KRS 160.700, et seq. , both prohibit the release of this information, without consent. No consent is maintained by Attorney Stewart as having been obtained. The FERPA carries with it the provision that federal funding to schools is jeopardized by such release, 20 USC Section 1232g(b)(1). Doe v. Knox Co. Bd. of Education, 918 F.Supp. 181 (E.D. Ky. 1996), demonstrates the seriousness of this situation.
On September 15, 1998, Mr. Stewart provided this office with a response to Mr. Bryson's September 14, 1998 letter. In that response, Mr. Stewart stated in part:
Mr. Bryson states that he was not releasing information that contained names of parents and students, which he considers to be "identifiable information" of students. I restated that this "report" which my client is requesting is very important, and that it would not be an insurmountable task to redact the names of the students and parents. As to the petitions referred to, my client already has a copy of those documents. I strongly disagree with Mr. Bryson's position and restate that it is a simple matter to redact students and parents names from the report requested.
We are asked to determine whether the Pulaski County Schools properly withheld disclosure of the investigative report. For the reasons that follow, we conclude that the school system erred in not making the report available for inspection in a redacted form, but was otherwise correct in its refusal to disclose personally identifiable information such as the names of parents and students.
KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
(Emphasis added.)
This provision extends, by its express terms, to all public agency employees, and overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j). 96-ORD-27. However, KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted or otherwise made confidential by enactment of the General Assembly, mandate that a public agency withhold records made confidential by federal or state law.
Since Ms. Taylor is a teacher with the Pulaski County Schools, she would be entitled to any records the school system has relating to her, including the investigative report, unless the investigation was ongoing. Mr. Stewart indicated in his response that the investigation was completed and a decision was made by the Kentucky Education Professional Standards Board on June 24, 1998, to dismiss without prejudice the allegations against Ms. Taylor. No claim has been made by the agency that the report relates to an ongoing investigation. Thus, the remaining issue is whether release of the report, or portions thereof, is prohibited by federal or state law.
In the instant case, the school system denied access to the report on the basis that its release was prohibited by the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 USC Section 1232g, et seq. , popularly known as the Buckley Amendment, and the Kentucky Family Education Rights and Privacy Act (KFERPA), KRS 160.700, et seq.
The Family Educational Rights and Privacy Act (FERPA) is a federal law which protects a student's privacy interests in education records. 20 U.S.C. § 1232g. The law is administered by the United States Department of Education. 20 U.S.C. § 1232g (a)(4)(A) provides that the term "education records" means "those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." See also, 34 CFR 99.3 "Education Records."
FERPA restricts access to a student's "education records (or personally identifiable information contained therein)..." on pain of withdrawal of federal funds. 20 U.S.C. § 1232g(b)(1). The term "personally identifiable information" is defined at 34 CFR § 99.3 as:
"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.
(Authority: 20 U.S.C. 1232g)
As a general rule FERPA requires that an educational agency obtain prior written consent from a parent before disclosing information from the education records from his or her child.
Likewise, KRS 160.700 et seq. , the Kentucky Family Education Rights and Privacy Act (KFERPA), particularly KRS 160.720(2), dictates that educational institutions "shall not permit the release or disclosure of records, reports, or identifiable information on students to third parties other than directory information as defined in KRS 160.700, without parental or eligible student consent ..."
In the instant case, Mr. Bryson indicated in his response to this office that no consent had been obtained for release of this information.
Under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the agency's response, we requested the Pulaski County Schools to provide this office with a copy of the investigative report so that we could make an in camera review of that document. Pursuant to KRS 61.880(2)(c); KRS 160.720(2); and 20 U.S.C. § 1232g(b)(1)(E), we acknowledged our obligation not to disclosed the contents of the document, which is the subject of this appeal.
We have examined the investigative report. As noted above, we cannot disclose the contents of the report. However, we can provide a general description of the record in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record.
To summarize generally, the report can be described as the findings of an investigative committee appointed by the Superintendent of the Pulaski County Schools to investigate an alleged abuse incident involving Ms. Taylor. The report contains summaries of interviews with witnesses, faculty members, and other individuals concerning the alleged incident. For purposes of this appeal, we note that the report does contain the names of students and students' parents.
The investigative report directly relates to Ms. Taylor as it concerns an allegation against her conduct as a teacher. In our view, the record is more of an employment or personnel record of the school, rather than an education record of a student, as defined under FERPA. However, the report does contain the names of students and students' parents which is personally identifiable information protected by FERPA and KFERPA, and thus implicates the application of those acts.
Under these circumstances, we conclude that Ms. Taylor, under authority of KRS 61.878(3), is entitled to a copy of the investigative report which is a school record which relates to her. However, information of a personally identifiable nature, such as the names of students and students' parents, should be withheld under authority of KRS 61.878(1)(k) and FERPA and KRS 61.878(1)(l) and KFERPA, respectively.
KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Accordingly, to satisfy the requirements of KRS 61.878(3); FERPA and KFERPA, the Pulaski County Schools should redact the names of students, students' parents, and other personally identifiable information relative to students from the report and make it available to Mr. Stewart. He has indicated that receipt of a redacted copy would be acceptable to him.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.