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 Floyd County Board of Education violated the Open Records Act in partially denying the request of Sheldon Compton, The Floyd County Times, for records relating to an incident that occurred at Prestonsburg Elementary School. For the reasons that follow, we find that the response of the Board was proper and did not constitute a violation of the Act.
Mr. Compton submitted a request to Gwen Hale Frazier, Principal, Prestonsburg Elementary School, asking for copies or inspection of the following documents, stating, in part:
1. All correspondence between you or any other representatives pertaining to the incident involving a kindergarten student walking away from Prestonsburg Elementary School and later found along South Lake Drive near Earl Street on January 31, 2003.
2. All other documents in your possession or custody relating to the incident involving a kindergarten student walking away from Prestonsburg Elementary School and later found along South Lake Drive near Earl Street on January 31, 2003.
We recognize your need to keep confidential the identity of the student and will accept copies with identifying information stricken.
Responding to Mr. Compton's request on behalf of the Board, Paul W. Fanning, Superintendent, advised:
Pursuant to review by our board attorney, I have enclosed the redacted copies of information you recently requested pertaining to a student leaving Prestonsburg Elementary School during the school day.
Following receipt of the Board's response to his request, Mr. Compton initiated an appeal to this office stating, in part, that the school "refused to divulge certain details concerning a kindergarten student." In his letter of appeal, Mr. Compton explained:
In that request, I stipulated that the student's name was not of pressing issue and offered the school and the board to omit this information in any correspondence turned over. However, the information I received on February 12 -- which included an email from Prestonsburg principal Gwen Hale Frazier to Floyd County Schools superintendent Dr. Paul Fanning, a student behavior referral containing both the teacher and the principal's report and a press release from the city's public safety department -- contained large portions of omitted information that seem to certainly contain more than the student's name or information revealing the student's gender. In many instances, the information stricken throughout the letter and reports renders any details remaining in the correspondence incomprehensible and contextually useless.
I think I am entitled to review these documents because there appears to be a general need for explanation and an understanding of how the incident managed to take place among community parents which properly submitted documentation could afford.
After receipt of Notification of the appeal and a copy of the letter of appeal, Jonathan C. Shaw, attorney, on behalf of the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Shaw described the information redacted from the two documents, cited the specific exceptions authorizing the redaction, and explained how exceptions applied to the redacted information. He described the redacted information as follows:
The information redacted from the January 31, 2003 e-mail correspondence and Student Behavior Referral included the child's name, birthdate, grade/homeroom, parents, address, phone number, gender identifying information, and information regarding special services.
As authority for withholding this information from disclosure, Mr. Shaw cited the following and explained:
KRS 61.878(1)(k) permits an agency to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " This provision incorporates 34 CFR 99 et seq., the body of federal regulations which implements the Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g. It is this statute which, along with its state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700 et seq. , regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. 20 USC § 1232g(4)(A). Under the terms of the Family Educational Rights and Privacy Act, disclosure of personally identifiable student information to third parties in the absence of a parent's or eligible student's prior written consent is restricted. School districts which disclose such records without proper consent run the risk of withdrawal of federal funds. See 20 USC 1232g(b)(1); KRS 61.878(1).
We are asked to determine whether the response of the Board violated the Open Records Act. For the reasons that follow, we find that the Board properly relied on KRS 61.878(1)(k) and 20 USC § 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 partially denying Mr. Compton's request. 1
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:
[D]ata and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
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.
This office has consistently recognized that student education records, including records of student discipline, are excluded from public inspection by operation of the Family Educational Rights and Privacy Act, 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k), and its state counterpart, KRS 160.700 et seq. , which is incorporated into the Open Records Act by KRS 61.878(1)(l), which regulate access to a student's "education records." 96-ORD-233; 95-ORD-55. These laws are aimed at preventing violation of student and family privacy rights by providing for the termination of federal funds to agencies or institutions which release student education records (or personally identifiable information contained therein) without the written consent of the student's parents.
There can be little doubt that a record, or portion of a school record, identifying the student who is involved in a school incident and the school's actions and disciplinary measures taken in regards to that student fall within the scope of an "education record, as defined by FERPA and KFERPA set out above, and must be excluded from public inspection. They contain information directly related to a particular student in attendance, and are maintained by an educational agency or institution. As indicated in the Board's responses, the two redacted records pertained to the student leaving Prestonsburg Elementary School during the school day. One was an e-mail from the principal of the school to the superintendent of Floyd County Schools and the other was a Student Behavior Referral form, containing both the teacher's and the principal's reports on the incident and identifying the student. They both describe the details of the incident involving the student. . Under these circumstances, we conclude that the both records at issue constitute an "education record," maintained by the school as part of a student's educational activity and disciplinary record. 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. Accordingly, we conclude that the Board properly denied access to the records at issue, under the additional authority of 20 USC § 1232g (FERPA), and KRS 160.700 et seq. (KFERPA).
Although the Board provided redacted copies of the two documents, redacting information that included "the child's name, birthdate, grade/homeroom, parents, address, phone number, gender identifying information, and information regarding special services, " we believe that the documents could have been withheld in their entirety, as they met the two-part test 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."
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.
Footnotes
Footnotes
1 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.