Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harlan County School System violated the Open Records Act in its disposition of David H. Dixon's April 21, 2000, request for three categories of records in the school system's custody. For the reasons that follow, we find that although the school system's response was procedurally deficient, important policy considerations compel us to examine the nature of the records requested sua sponte , and to conclude that access may properly be denied on the basis of KRS 61.878(1)(k) and (l), incorporating the provisions of the state and federal Family Education Rights and Privacy Acts codified at KRS 160.700 and 20 USC § 1232g, respectively.
On April 21, 2000, Mr. Dixon requested access to the following records:
1. The bus run reports for Cumberland Primary, Middle, and High School which include the names of the students assigned to each stop and the times at which the students are picked up and dropped off;
2. The list of students that purchased parking permits at Cumberland High School for the school years 1996, 1997, 1998, 1999, and 2000;
3. Attendance reports for each homeroom at Cumberland Primary, Middle, and High School.
Having received no written response to his requests, Mr. Dixon proceeded to make oral inquiries. Bypassing then-Superintendent Musselman, to whom his original request was directed, Mr. Dixon went to the Harlan County School System's Transportation Department where he spoke to Danny McCreary. Mr. McCreary indicated that he would provide Mr. Dixon with a copy of the bus run reports after he masked the names of the student's at each stop, but the request was never fulfilled. Mr. Dixon received no response to his request for the list of student parking permits and attendance records, and was thus prompted to initiate this appeal.
In a response directed to this office following commencement of Mr. Dixon's appeal, Johnnie L. Turner, an attorney representing the Harlan County Board of Education, advised us that the Board "has provided Mr. Dixon with the general bus routes for mornings and afternoons. " With reference to the specific information to which Mr. Dixon had requested access, Mr. Turner explained:
It is our position that if we should provide Mr. Dixon with this request of each stop, he or any other person would be able to pinpoint when any child would be waiting for or getting off of the bus. This person could follow the bus and pick up the time that each child would be picked up and or delivered from a bus which would be a safety hazard and a danger to our children. We do attempt to cooperate with Mr. Dixon's requests; however, we do feel this is an unfair request and intend to defend it vigorously.
The response did not identify the statutory basis for the school system's partial denial of Mr. Dixon's request, nor did it contain an explanation for the decision to withhold the list of students who purchased parking permits, and attendance records. To this extent, the Harlan County School System's response did not conform to KRS 61.880(1).
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Because the Harlan County School System failed to respond in writing, and within three business days, to Mr. Dixon's request, and to cite the exception or exceptions authorizing nondisclosure, and explain their application to the records withheld, its disposition of the request was procedurally deficient.
In Edmondson , the court recognized that despite undeniable deficiencies in the agency's response, the circuit court improperly ordered disclosure of the records, "presumably as the only sanction available . . . ." Edmondson at 859. Continuing, the court held that "it is incumbent upon the circuit court to examine this material and to make a determination as to whether it is substantively exempt from disclosure" lest the agency's error be compounded by releasing records intended to be protected from public scrutiny. Id. Although the Court of Appeals did not extend its holding to the Office of the Attorney General, which acts in a quasi-adjudicative role in resolving open records disputes pursuant to KRS 61.880(2), and this office rarely assays to invade the circuit courts' prerogative, the appeal before us has far reaching policy implications for local school boards which compel us to undertake a substantive analysis of the disputed records. Our analysis leads us to conclude that those records must be characterized as "education records," within the scope and meaning of the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), and its state counterpart, KRS 160.700 (KFERPA), and that they are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(k) and (l).
In 99-ORD-217, this office examined FERPA and KFERPA in some depth. At pages 6 through 8 of that decision, we observed:
The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20 U.S.C.A. § 1232g(4)(A) as "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." With the exception of certain narrow categories of records identified at 20 U.S.C.A. § 1232g(4)(B)(i)(iv), and not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two- part test described above. The corresponding provision in Kentucky's act defines the term "education record" as:
It too contains four exclusions which basically track the language of the federal exclusions, also not relevant here, and it too is intended to be inclusive.
The Family Educational Rights and Privacy Act precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. It is also aimed at insuring parents of students, and students themselves if they are over eighteen years of age, access to their education records.
20 U.S.C.A. § 1232g(b)(1) provides:
The goal of this legislation, as we understand it, was "to end denial of access to parents and students, and to prevent violations of student and family privacy rights by the release of unscreened records to third parties without parental or student consent." Note, Federal Genesis of Comprehensive Protection of Student Educational Record Rights. The Family Educational Rights and Privacy Act of 1974, 1 Iowa Law Review 74 (1975) .
. . .
It is reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act, are intended to serve these same purposes.
99-ORD-217, p. 6-8.
Critical to our analysis in the instant appeal is the longstanding recognition that in defining the term "education record," "the congressional intent was to fashion a broad definition." Belanger v. Nashua, New Hampshire School District, 856 F.Supp. 40, 49 (D. N.H., 1994). Accordingly, student records "do not have to be related to academic matters to be 'education records' under FERPA.." United States v. The Miami University, 91 F.Supp. 2d 1132, 1149 N. 17 (S.D. O, 2000). As long as the records contain information directly related to a student, and are maintained by an educational agency or institution, they fall within the parameters of the federal act, and unauthorized disclosure may result in the forfeiture of federal funds. 20 USC § 1232g(a)(4)(A). Given the similarity of this definition of "education record" to the definition of the term found at KRS 160.700(3) of the Kentucky Family Education Rights and Privacy Act, we deem them to be equally expansive.
There can be little doubt that the attendance records which Mr. Dixon requested are education records within the contemplation of both the state and federal acts. Such records contain information that relates directly to a student, or identified students within a given homeroom, and are maintained by the named educational institutions, to wit, Cumberland Primary, Cumberland Middle, and Cumberland High School. Inasmuch as they contain academic and educationally-related information, they qualify as education records in the traditional sense. This conclusion was confirmed in a conversation with a representative of the Family Policy Compliance Office of the United States Department of Education, the agency charged with interpretation and enforcement of the Family Educational Rights and Privacy Act. The Harlan County School System may properly withhold these records on the basis of KRS 61.878(1)(k) and (l), incorporating the provisions of federal and state FERPA. So too, we are advised by the Family Policy Compliance Office, the school system may withhold records reflecting the identities of students at Cumberland High School who purchased parking permits in the last five years. Such records, to the extent that they contain personally identifiable information, must also be characterized as education records in the broader sense of the term. Pursuant to 34 C.F.R. § 99.3, the Department of Education defines "personally identifiable information" as, inter alia :
(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.
Because records relating to the purchase of student parking permits almost certainly contain the students' names and other personal identifiers, such as drivers license numbers or vehicle license plate numbers, both of which would make the students' identities easily traceable, these records may also qualify for exclusion under FERPA and KFERPA.
Finally, we have confirmed through the Family Compliance Office that the Harlan County School System is under no obligation to disclose the names of the students at each stop along the bus routes. It was, again, that agency's view that this portion of the run reports should be withheld, absent parental consent to disclosure, as a potential infringement of FERPA, and by extension, KFERPA. Although neither state nor federal act restricts access to records that describe or depict the general morning and afternoon bus routes, which the school system already disclosed, information on the run reports that relates directly to a student is excluded from public inspection insofar as it, too, must be characterized as an education record.
In closing, we note that nothing in the state or federal law relating to education records restricts access to statistical analyses of student attendance or other raw data that does not relate to an identifiable student or contain information that would make the student's identity easily traceable. Such records, if they are currently maintained by the Harlan County School System, could be released without running afoul of the Family Educational Rights and Privacy Act and its Kentucky counterpart. We urge Mr. Dixon and the Harlan County School System to work toward an amicable resolution of their records access dispute by investigating these alternatives in the spirit of cooperation which the Open Records Act promotes, and we endorse.
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 proceedings.