Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Public Schools violated the Open Records Act in partially denying Donald L. Miller's May 2, 2000, request for records relating to traditional school enrollment policies and residency requirements. For the reasons that follow, we find that Jefferson County Public Schools' reliance on KRS 160.705, et seq. and 20 USCA § 1232g, incorporated into the Open Records by operation of KRS 61.878(1)(k) and (l), was misplaced.
On May 2, Mr. Miller submitted an open records request to the Jefferson County Public Schools in which he identified eighteen categories of records that he wished to inspect. JCPS honored all but five of his requests, explaining that it maintained no records that were responsive to two of the requests, numbers 16 and 17, and that state and federal law prohibited it from honoring requests 11, 12, and 15. On behalf of JCPS, public information officer Lauren E. Roberts advised Mr. Miller:
The disclosure of the requested records is restricted by state and federal law for the privacy of student education records. These records contain information directly relating to a student that is collected and maintained by the educational institution.
Ms. Roberts referred Mr. Miller to the Kentucky Family Education Rights and Privacy Act and its federal counterpart, the Family Educational Rights and Privacy Act. This appeal followed.
In his letter of appeal, Mr. Miller questioned the Jefferson County Public Schools' decision to withhold:
. Copies of all letters received by the school or school system with contemporaneous date stamping signifying the date on which those letters were received by the school or school system showing that a particular student will enroll in the incoming kindergarten class for the fall 2000 at Audubon Traditional Elementary;
. Any other log, calendar, note or written evidence showing when a particular student accepted his or her spot for the incoming kindergarten class at Audubon Traditional Elementary School in the year 2000;
. Names of all students admitted to the kindergarten classes at Audubon Traditional Elementary School in the fall of 2000 and the names of their parents or guardians whose address was used as the basis for the admission. 1
Mr. Miller noted that the traditional program "purports to select its students on a random draw basis" from applications submitted by parents who wish their children to attend traditional schools. Continuing, he explained:
Students are assigned to a particular traditional school "on the basis of their home address." [Jefferson County Public Schools: Food for Thought! A Guide ..., p. 15]. Inconsistently, however, the published TRADITIONAL PROGRAM GUIDELINES approved by the Jefferson County Board of Education on January 26, 1998, state that students are assigned to Traditional Programs "according to street address." As you know, the concepts of home address, street address and residency can be very different concepts and are easily manipulated.
Moreover, when a student is notified of his or her placement, each student is given a particular date by which acceptance of that placement must be communicated to the school. That date or time period is not published in either of the previously two cited publications and, based upon information and belief, is administered very fluidly (despite the firm date given in correspondence) at the school level.
It is Mr. Miller's belief that a number of students who attend traditional schools "are attending on the basis of addresses other than their true home addresses or residency, " and without complying with the deadlines for acceptance. He wishes to inspect the records identified in his request in order "to independently confirm that the published rules have been followed."
In a supplemental response directed to this office, Ms. Roberts elaborated on Jefferson County Public Schools' position. She indicated that:
in addition to the names and addresses of the parents of students selected [for the traditional program], Mr. Miller requested the "acceptance" forms that are sent back to the school by each student's parent. These forms contain student name, previous school, address and parents' home and work telephone numbers.
?
We believe that there is a strong privacy interest regarding a parent's school selection for their child. The information contained in the requested documents is more than harmless directory information. The acceptance form is a "response card" that is "the formal instrument which parents exercise their right to make an important educational decision on behalf of their child" (99-ORD-73, page 6).
Based on the reasoning of 99-ORD-73, Ms. Roberts asked that the Attorney General affirm the Jefferson County Public Schools' partial denial of Mr. Miller's request. Alternatively, she asked that if we determine that the information contained in the records Mr. Miller requested is directory information, we review OAG 88-50 "since KRS 160.705 requires the confidentiality of all education records, and the contents thereof unless pursuant to KRS 160.725, the school district has given the proper notice to parents relating to directory information." We find neither of these arguments persuasive. 2
It is the opinion of this office that the records at issue in this appeal are different in kind from the records at issue in 99-ORD-73, and that decision is clearly distinguishable. In 99-ORD-73, a copy of which is attached hereto and incorporated only to the extent of its review of FERPA and KFERPA, this office affirmed the Fayette County Public Schools' denial of a request for copies of response cards that parents returned to the Fayette County Public Schools requesting that their children be transferred from a middle school that had fallen into the lowest category, as a result of state assessment tests, to another middle school. At page 6 of that decision, we observed:
The response cards submitted by the parents of children enrolled at Crawford Middle School to the Fayette County Public Schools, reflecting the decision to transfer their children from the school, qualify for protection as education records under both the federal act and the state act. The response cards are records which contain information directly related to a student and are maintained by an educational agency or institution. In contrast to a record containing harmless directory information, the response card is the formal instrument by which parents exercise their right to make an important educational decision on behalf of their child. The cards implicate both student and family privacy interests which directory information, by its nature, does not implicate.
The acceptance forms, and any other written evidence documenting when the student accepted his or her place in the incoming kindergarten class, do not enjoy the same protection.
In a conversation with the undersigned conducted on June 1, 2000, Ellen Campbell, a program specialist in the Family Policy Compliance Office of the United States Department of Education, the agency charged with interpretation and enforcement of FERPA, explained that the rights and protections associated with the Act do not attach until a child is considered a "student in attendance. " Acknowledging that this was an issue of first impression for the Family Policy Compliance Office, and a "gray area," she nevertheless analogized the situation before us with cases involving applicants for admission to colleges or universities who do not enjoy any rights or protections under FERPA until they are considered "students in attendance. "
Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989). FERPA defines the term "student" as "any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution ." 20 USCA § 1232g(a)(6) (emphasis added). 3 Critical to the resolution of this appeal is a determination of when children entering the fall 2000 kindergarten class at Audubon Traditional Elementary School are deemed "in attendance. " Although we can locate no legal authority expressly demarcating when a child entering kindergarten is deemed "in attendance, " we are informally advised by Jefferson County Public Schools' officials that the child is entered on the attendance records on his or her first day of school, and is therefore considered a student in attendance on that date. 4 Accordingly, we find that FERPA's rights and protections do not extend to the child until this time, and that the federal act and its state counterpart cannot be relied upon as a basis for denying access to the acceptance form and other written evidence documenting the date on which the acceptance form was returned.
This is not to say that records relating to children entering kindergarten that are maintained by an educational agency enjoy no protection. Such records clearly fall within the definition of a public record codified at KRS 61.870(2). 5 With respect to public records governed by the Open Records Act, the Kentucky Supreme Court has observed:
Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are documents "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1). Also excluded are "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i) and (j)]. From the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578 (1994).
Further, with specific reference to student and family privacy interests in records maintained by an educational agency, the Kentucky Court of Appeals has observed:
In no other circumstance is the need to balance [the competing interest of the public's access to public records and the individual's right to privacy] greater than to protect a minor and parent from intrusions into educational records."
J. Kyle Foster v. Hardin County Schools , No. 97-CA-000960MR (3/19/99), motion for discretionary review granted, 99-SC-333 (2/16/00). We categorically reject the notion that the public is entitled to unfettered access to these records. Indeed, we can envision few records in the custody of an educational agency that relate to a current, former, or prospective student that would not qualify for exclusion under KRS 61.878(1)(a).
The records at issue in this appeal consist of acceptance forms containing the student name, parent name, previous school, grade for 2000-2001, address, zip code, home phone number, and mother's and father's work number, along with the parent or guardian's signature and response to the invitation to attend Audubon Traditional Elementary School. Also at issue are any logs, calendars, notes, or written evidence that indicate when the acceptance form for each child invited to participate in the program was returned. We find that in the case of these records, the balance tips in favor of partial disclosure.
In 99-ORD-73, this office concluded that response cards submitted by the parents of Crawford Middle School were excluded from public inspection not only by the federal Family Education Rights and Privacy Act, and its Kentucky counterpart, but also by KRS 61.878(1)(a). At page 7, we observed:
What is at issue in the appeal before us is the public's right of access to records reflecting a critical educational choice made by parents on behalf of their child, and the parents' and child's competing privacy interests in those records. To the extent that already disclosed records, or information contained in these records, reveals that the Fayette County Public Schools has properly executed its statutory duties arising under Chapter 158 of the Kentucky Revised Statutes, we conclude that the parents' and child's privacy interests must prevail. As noted, Kentucky's courts have recognized that the need to balance the competing interests of public access and personal privacy is nowhere greater than in the context of education. Foster , above. That privacy interest, postulated above, arises from the parents' right to make an educational choice on behalf of their child without intrusion.
Nevertheless, we also recognized the weightiness of the competing public interest in the Fayette County Public Schools' discharge of its functions and duties. Our decision that the privacy interest of the parents and students in the response cards outweighed the public's right to know was based on the following analysis:
It is ? the conduct of the Fayette Schools in discharging this mandate, and not the parents in exercising their right of choice, that is the focus of the Open Records Act. Our review of the record demonstrates that from records and information already disclosed, the public has learned that in 1998 Crawford Middle School fell into the lowest category as a result of state assessment tests, namely decline-parental notification, that Fayette County notified parents in the Crawford Middle School attendance area of the transfer option in December, and that 41 parents requested the transfer option. The only additional information that could be gleaned from disclosure of the records ? is through derivative use of the parents' names which appear on the response cards.
99-ORD-73, p. 7, 8.
In the appeal before us, no records have been produced to substantiate that the Jefferson County Public Schools and Audubon Traditional Elementary School have performed their duty to insure that children entering the kindergarten program qualify by virtue of their home address, and by virtue of having met the deadline for returning the acceptance forms. Admission into the traditional program is in great demand, and the uniformity with which the requirements for admission are enforced has been directly called into question, thus augmenting the public's interest in disclosure. We do not, on the other hand, attach the same weight to the privacy interests asserted on behalf of parents who return an acceptance form on behalf of children randomly selected to enter the traditional school program, as we attach to the privacy interests asserted on behalf of parents of children attending a school whose declining test scores have mandated the statutory duty of parental notification and the option to transfer out of the school. It is therefore our decision that the public's interest in insuring that traditional school enrollment policies and residency requirements are fully and fairly enforced outweighs the parents' and children's privacy interest in the nondisclosure of the acceptance forms. We find that the Jefferson County Public Schools erred in denying Mr. Miller access to the forms.
Nevertheless, we do not believe it is incumbent on Jefferson County Public Schools to release the acceptance forms in their entirety. We know of no open records related public purpose that is served by disclosure of those portions of the acceptance forms that contain the child's previous school, grade for 2000-2001, home telephone number, and mother's and father's work telephone numbers. Inasmuch as the requested records relate to children entering kindergarten, the first two categories contain information of negligible value. The three remaining categories have no bearing on a determination whether enrollment policies and residency requirements are being fully and fairly enforced. The child's name, parent or guardian's name, address, and zip code, along with the date stamp documenting when the form was returned, have a direct bearing on the issue of the Jefferson County Public Schools' discharge of its functions and duties relative to enrollment in the traditional school program. In our view, these entries must be disclosed.
It is unclear whether records exist that are responsive to Mr. Miller's request for logs, calendars, notes, or written evidence indicating on what date the acceptance forms were returned. Jefferson County Public Schools neither confirmed nor denied the existence of such a record. Consistent with the reasoning set forth above, we find that if such a record does exist, JCPS is obligated to disclose those portions reflecting compliance with residency requirements and the requirement of a timely response. The remainder of any such record may be redacted pursuant to KRS 61.878(1)(a) and KRS 61.878(4).
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.
Footnotes
Footnotes
1 The Attorney General has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for records. See, for example, 99-ORD-17 and authorities cited therein. Mr. Miller's request for the names of students admitted to the kindergarten class, and the names and addresses of their parents, was not a properly framed open request for public records. We therefore limit our review to the propriety of the Jefferson County Public Schools' denial of Mr. Miller's request for the acceptance forms returned to Audubon Elementary, and any log, calendar, note, or other written evidence of date of the students' acceptance.
2 In subsequent correspondence directed to this office, Mr. Miller advised that on June 2, 2000, JCPS released to him "documents purporting to be 'complaints' which disclosed names of parents, names of students, academic difficulties with those students including whether the particular student would be 'held back.'" In his view, JCPS's argument that disclosure of acceptance forms constituted an unwarranted invasion of privacy, or was inconsistent with the requirements of FERPA and KFERPA, was "disingenuous," given its willingness to disclose far more sensitive education records.
3 KFERPA does not define the term "student." KRS 160.700(4) refers to an "eligible student" as one who has reached the age of eighteen or is pursuing an education beyond high school. This definition is clearly inapposite. Nevertheless, KRS 160.725(1) directs state educational institutions to "give public notice of the categories of directory information ? with respect to each student in attendance " and to allow a reasonable time for parental objection. (Emphasis added.)Additionally, KRS 160.715(1) insures the right of "parents of students ? attending public institutions or who have been in attendance " to inspect student education records. (Emphasis added.)
4 This was confirmed by the Kentucky Department of Education's Division of Finance, Attendance and Data Collection Branch. They advise us that a school normally enrolls a child E1 when they come to school at the beginning of the school year. Regulatory authority for this policy is found at 702 KAR 7:125 which states, at Section 16:
The following entry, reentry and withdrawal codes shall be used to indicate the enrollment status of pupils:
(1) EO1 - A pupil enrolled for the first time during the current year in either a public or nonpublic school in the United States[.]
5 KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "
1 It is well-established that a public agency is not required to compile a list to satisfy an open records request. See, for example, 96-ORD-251 and authorities cited therein. We therefore limit our review to the propriety of the Fayette Schools' denial of Ms. Hayes's request for the response cards.
2 KRS 61.878(1)(k) and (l) require public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation; and
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 KRS 160.715(1) thus provides:
Parents of students or eligible students attending public institutions or who have been in attendance shall have the right to inspect and review student education records within a reasonable time of making a request to inspect.
KRS 160.705(1), on the other hand provides:
Education records of students in the public educational institutions in this state are deemed confidential and shall not be disclosed, or the contents released, except [with the written consent of the parents or eligible students, or to individuals or entities identified in KRS 160.720(2)(a) through (g)].
4 This position was confirmed by Ms. Ellen Campbell, who is attached to the Family Policy Compliance Office of the United States Department of Education, which mediates disputes under FERPA. It was her office's view that FERPA's protection would extend to the response cards.
5 Given the evolution of the privacy exemption since 1988, when the referenced opinion was issued, it is unclear whether we would reach this conclusion if the same issue was presented to us today.