Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harlan County School System and Cumberland High School violated the Open Records Act in its disposition of David H. Dixon's July 17, 2000 open records request for "attendance reports for May and June of the following years for Cumberland High School: 1996, 1997, 1998, 1999, 2000."
Responding on behalf of the agencies, Edward G. Clem, Principal, Cumberland High School, denied the request, stating that the request was too burdensome for the school to comply and asked that Mr. Dixon be more specific in his request and to state the purpose of his request.
We believe that 00-ORD-148, and the authorities cited therein, is controlling on the issue of release of the requested attendance records. A copy of this opinion is attached hereto and incorporated by reference. In that decision, we examined the nature of the records requested and concluded that a school system could properly deny access to attendance records on the basis that attendance records are "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 they are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(k) and (l). We reach the same conclusion here. The agencies did not violate the Open Records Act in withholding disclosure of the attendance records.
We note, however, that the response was procedurally deficient in that it failed to cite the statutory exception upon which it relied in support of its position that Mr. Dixon's request was too burdensome, as is required by KRS 61.880(1).
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
If an agency invokes KRS 61.872(6) as a basis for the nondisclosure of requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it. This burden is not sustained by the bare allegation that the request is unreasonably burdensome. Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. There we held that mere invocation of the cited exception does not sustain the agency's burden. Moreover, as a general rule, a person requesting public records is not required to state why he wishes to inspect the records. 95-ORD-33.
However, as set forth above, attendance records are "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 they are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(k) and (l). Thus, we conclude there was no violation of the Open Records Act in withholding disclosure of the requested attendance records. 00-ORD-148.
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.