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 Jackson Independent School District (School District) violated the Open Records Act in denying Carl W. McIntosh's open records request for a copy of a School District video recording of a basketball game and certain records and information related to the recording. For the reasons that follow, we find the School District properly denied his request.
By letter dated December 17, 2002, Mr. McIntosh submitted the following request:
Pursuant to the Open Records Act, this letter is to formally request a copy of the video recording of the Jackson City - Wolfe County boys' varsity basketball game played on December 3, 2002 as it was aired on local access channel 9. I also request that you provide me with a log of all dates and times this video was aired for public viewing. Additionally, I request a listing of all persons involved in the broadcasting of this game. I am providing to you a blank video for use in copying/replacing the requested video.
Responding on behalf of the School District, O. Taylor Collins, Superintendent, by letter dated December 17, 2002, denied the request, advising in relevant part:
I am responding to your personal request for a copy of the video recording of a recent varsity basketball game at which you were a KHSAA referee.
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In response to your request, given federal legislation (FERPA), and similar state legislation, with which I am sure you are familiar in your other job of Principal, I cannot release the tape you have requested; see KRS 61.878(1)(k)(l).
We do not keep a log of number of times a game is shown on channel nine. However, according to verbal information from our director, it was probably only once. A whole day's taping is recorded on one long video. On that day the tape was begun at 8:00 a.m.. It was pulled at 4:00 p.m. when offensive language was discerned. The assistant director is now under order to pre-view every minute of tape before playing it. I do not have a list of all persons whose voices were involved.
Once again, I am humbly apologetic for any disrespect shown you while you were a referee here. I assure you we have taken every step to ensure that it will never happen again.
As a result of the denial of his request, Mr. McIntosh initiated the instant appeal. In his letter of appeal, he explained in part:
. . . I requested a copy of a videotape recording of a basketball game; this recording had been aired by the Jackson County Independent School District on the local access television channel. I was one of the referees at this game, and I had been informed that the student commentators of the game made certain defamatory statements against me which were broadcast by the school on television. Therefore, I requested a copy of the videotape that had been shown on the local access television channel.
After receipt of Notification of the appeal and a copy of the letter of appeal, John C. Fogle, III, Chenoweth Law Office, on behalf of the School District, provided this office with a response to the issues raised in the appeal. In his response, Mr. Fogle, expanding on the Superintendent's denial, explained:
By letter dated December 17, 2002, on behalf of the Jackson Independent School District, Superintendent O. Taylor Collins denied the request for a copy of the videotape in question under the Family Education Rights and Privacy Act ("FERPA"). 20 U.S.C. § 1232g et seq. , as well as the Kentucky Family Education Rights and Privacy Act, ("KFERPA"), KRS 160.700 et seq. , as incorporated in KRS 61.878(1)(k) (exempting disclosure of records or information disclosure of which is prohibited by federal law and regulation), and KRS 61.878(1)(l) (exempting disclosure of records or information disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly). In addition, Superintendent Collins advised that no records were maintained of the requested log or list.
The request for inspection was properly denied. As an initial matter, the appeal letter does not challenge the denial of access to the sought after "log" and "listing" on the bases that no such records exist. In any event, the lack of existence of a record is a legitimate bases for denial of inspection, and the Open Records Act does not require a public agency to compile information and create records at the behest of a requesting party. See 96-ORD-139.
Denial of inspection and copying of the videotape was also appropriate under KRS 61.878(1)(k) and (l). The Jackson Independent School District supplies various programming over a local cable access channel in Jackson, Kentucky. This includes programming of various sporting events. As part of communications course work or on an extra-curricular basis (with an eye toward building communication skills), student commentators are permitted to "call" athletic events. These activities are overseen by the school district and the district maintains the tapes for instructional purposes.
With respect to the tape in question, counsel is advised that the student commentator is readily identifiable by his voice and that several students attending this athletic event are depicted on camera. In addition, the videotape requested has been utilized as a basis for disciplining the student commentator. On information and belief, the game in question was shown once on the local access cable television channel. See 12-17-02 letter of O. Taylor Collins, Superintendent.
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In the present case, several students are depicted on camera and that alone warrants coverage under FERPA and KFERPA and the corresponding Open Records Act exemptions. Moreover the voice of the commentator constitutes a "personal characteristic" which is "easily traceable" in relation to a school event as part of above-described communications activity giving rise to a record in which students are readily identifiable. Under the above authorities, the denial of inspection was proper in that the request implicates the release of an education record or personally identifiable information contained in such record. See Hardin [County Schools v. Foster, Ky., 40 S.W.3d 865 (2001)] at 869.
Further, inasmuch as the tape has served as the basis for discipline of the student commentator as relates to his communications activities (in marked contrast with the mere statistical compilations at issue in Hardin, supra), the record in question qualifies as an exempt education record on this alternative basis. Cf. Hardin, 40 S.W.3d at 869.
We are asked to determine whether the School District's denial of Mr. McIntosh's request for a copy of the videotape violated the Open Records Act. For the reasons that follow, we find that the School District properly relied on KRS 61.878(1)(k) and 20 U.S.C. § 1232(g), the Federal Family Educational Rights and Privacy Act (FERPA), as well as KRS 61.878(1)(l) and KRS 160.700 et seq., the Kentucky Family Education Rights and Privacy Act (KFERPA), in denying Mr. McIntosh's request.
In 99-ORD-73, we explained the purpose and application of FERPA and KFERPA to student records as follows:
The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20 USCA § 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 USCA § 1232(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 USCA § 1232g(a)(1)(A) provides:
The converse of this rule is found at 20 USCA § 1232g(b)(1), which 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, 61 Iowa Law Review 74 (1975).
The video recording at issue in this appeal falls within the definition of an education record for purposes of both FERPA and KFERPA. It contains information directly related to particular students and is maintained by the educational agency or institution. The responses of the School District explain that the video recording by students was part of the communications course work or extra-curricular activity of the school. The responses indicate that the particular video at issue was a student broadcast of a basketball game in which the student commentator used offensive language and was disciplined for his conduct. The responses further indicate the student commentator in the video recording was readily identifiable by his voice and the tape served as the basis by the school in disciplining the student for his communications activity. Under these circumstances, we conclude that the videotape is an "education record," maintained by the school as part of a student's educational activity and disciplinary record. Accordingly, we conclude the School District properly denied Mr. McIntosh's request on the basis that release of an education record containing personally identifiable information of a student is prohibited by FERPA and KFERPA, incorporated into the Open Records Act by operation KRS 61.878(1)(k) and (l).
In addition, it is not clear whether the School District has taken the necessary steps to designate the student programming aired on local access television as "directory information." If it has not done so, then the public airing of the programming could constitute a violation of FERPA and KFERPA. However, because of the conclusion we reach in this appeal, it is unnecessary to address that issue.
Finally, we conclude the School District properly denied Mr. McIntosh's request for "a log of all dates and times this video was aired" and "a listing of all persons involved in the broadcasting of this game." The agency affirmatively advised that no such records existed. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The School District affirmatively advised that it did not have the records Mr. McIntosh requested. The agency discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Moreover, an agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
This office has also long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. Accordingly, we conclude the actions of the School District in this regard did not constitute a violation of the Open Records Act.
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.
Distributed to:
Carl W. McIntosh1181 Highland RoadJackson, KY 41339
O. Taylor Collins, SuperintendentJackson Independent Schools944 Highland Avenue
John C. Fogle, IIICheoweth Law Office121 Bridge StreetFrankfort, KY 40601