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 Barren County Board of Education violated the Open Records Act in denying Glasgow Daily Times reporter Ronnie Ellis' and editor Layne Bruce's April 14, 2003 request for "a list of all students currently on the wait list to enroll in Red Cross Elementary School, including the names of the students, their guardian, and legal mailing address who are on the wait list but currently enrolled in another Barren County School . . . ." Messrs. Ellis and Bruce indicated that it was their "understanding that those students or their guardians have signed a waiver to release information about enrollment. " For the reasons that follow, we find that the Board's reliance on KRS 61.878(1)(a) and KRS 61.878(1)(k) and (l), incorporating 20 U.S.C ( 1232g and KRS 160.700, et seq. into the Open Records Act, in denying the request was, on the particular facts of this appeal, misplaced.
In a response dated April 1, 2003, Superintendent Jerry Ralston advised Messrs. Ellis and Bruce as follows:
Your request is denied in that the information you are seeking contains information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a). Your request is further denied because the information you seek constitutes a student record which is protected from disclosure pursuant to the Family Education Rights and Privacy Act, 20 U.S.C. [SEE SYMBOL IN ORIGINAL] 1232g. and the Kentucky Family Education Rights and Privacy Act, KRS 160.700, et seq. While you indicate that you understand that the Barren County School District students about which you are requesting information have signed a waiver for the release of such information, I do not have such a waiver, and you have not provided such a waiver with your request. If you are referring to the School District's ability to release directory information pertaining to students in limited circumstances, the context in which you are requesting information is not directory in nature, and the School District has never identified a list of this nature as directory. Moreover, while the Family Education Rights and Privacy Act and the Kentucky Family Education Rights and Privacy Act permit the release of directory information in limited circumstances, such a release is not mandated even when the information is directory.
Superintendent Ralston acknowledged that their earlier requests for records "identifying the number of students currently attending other elementary schools within the Barren County School District who have requested consideration for enrollment at Red Cross Elementary School . . . [and] students currently attending the Glasglow Independent School District as well as students attending school districts outside Barren County," which were "categorized by school and by grade" were, in fact, honored. Shortly after receiving Superintendent Ralston's denial, the Glasgow Daily Times initiated this open records appeal.
In their letter of appeal, Messrs. Ellis and Bruce indicate that they are "seeking to determine whether students from the Barren County attendance district are being denied enrollment in . . . Red Cross while students from outside the district are enrolled in the school." They explain:
Barren County has an "open enrollment" policy which allows any student from within the county district to attend any of its six elementary schools, regardless of their specific school attendance district, so long as the school does not exceed cap sizes and parents provide transportation to the school. The district also has a board policy which determines which students by what priority are to be turned away or re-assigned when cap sizes are reached. Students from outside the district are the first to be denied enrollment under that policy.
In support, they attached a copy of the policy governing school attendance areas (Order # : 342, adopted/amended : 5/13/1999).
Continuing, Messrs. Ellis and Bruce observe:
The Daily Times has determined through board records that 67 students from outside the Barren County School District are enrolled in Red Cross Elementary -- more than 10 percent of the school's total enrollment. Simultaneously, the Superintendent, Director of Pupil Personnel, and principal at the school have stated there exists a current wait list of students wishing to enroll in the school and that some of them are from Barren County. But the Daily Times has been provided at least three different numbers on that list by representatives of the school district.
They note that the Board honored a previous request for "a list of out-of-district contract students who live in other school districts but attend Barren County schools" by providing a list that included names, mailing addresses, the districts in which they reside, and the Barren County schools in which they are enrolled, 1 and that an unidentified Board representative indicated at that time that "all Barren County students sign a waiver upon enrollment that allows the district to provide such information."
It is the Daily Times' position that "the requested names are not exempt from public disclosure because (a) those students are already enrolled in another Barren County school; consequently, (b) those students have signed the same waiver regarding disclosure that the out-of-contract students signed . . ." and that "the Board's real reason for denying the request is to prevent the paper from disclosing that the Board is in violation of its own attendance policies." Because the information in the list to which the Daily Times seeks access is "simple directory information related to school enrollment, " Messrs. Ellis and Bruce urge this office to issue a decision determining that the Barren County Board of Education violated the Open Records Act in denying their request.
In supplemental correspondence directed to this office following commencement of the Daily Times' appeal, Board attorney Regina A. Jackson elaborated on her client's position. She relied on this office's decision in 99-ORD-73 in which we affirmed the Fayette County School District's denial of a request for a copy of "the list of parents who requested to transfer their children from [a named] Middle School. . . [or] copies of the response cards parents returned to the district requesting the transfer" on the basis of KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. ( 1232g and KRS 160.700 et seq., and KRS 61.878(1)(a)," characterizing the Daily Times' request as "nearly identical" and the information requested as "an educational record under both FERPA 2 and KFERPA." 3 On behalf of the Board, Ms. Jackson maintained:
The information requested also does not fall under the directory information exception as it is not harmless generic information but constitutes a formal process by which parents have indicated their desire to move their child from one school to another. As recognized in 99-ORD-73, the requested list implicates "both student and family privacy interests which directory information, by its nature, does not implicate. "
The list requested by the Glasgow Daily Times is also protected from disclosure based on the privacy exception contained in KRS 61.878(1)(a). While the Glasgow Daily Times asserts that its current request is no different than the list of out of district contract students who live in other school districts but attend Barren County Schools which was previously provided, this list is significantly different in that it merely represents a list of students who are actually attending the Barren County School District. See OAG 88-50. The current request of the Glasgow Daily Times bears no resemblance in that it seeks a list of students who are on a waiting list to attend a particular school.
Because the facts giving rise to 99-ORD-73 are factually distinguishable from the facts giving rise to this appeal, and the cited exemptions therefore inapposite, we find that the Barren County Board of Education improperly withheld the records identified in the request submitted by Messrs. Ellis and Bruce.
In 99-ORD-73, this office was asked to determine if the Fayette County School District properly relied on KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. ( 1232g and KRS 160.700, et seq. , into the Open Records Acts, and KRS 61.878(1)(a) in denying an open records application for response cards returned to the District by parents requesting that their children be transferred from a middle school which one year before "fell into the lowest category as a result of state assessment tests, namely decline-parental notification" thereby triggering specific statutory duties under Chapter 158 of the Kentucky Revised Statutes. Because they "contain[ed] information directly related to a student and [were] maintained by an educational agency or institution," we determined that the response cards were education records under both state and federal law," that the cards were "the formal instrument by which parents exercise[d] their right to make an important educational decision on behalf of their child," and that the cards did not consist of "harmless directory information" but instead "implicate [d] both student and family privacy interests which directory information, by its nature, does not implicate. " 99-ORD-73, p. 6. While we hereby affirm, and incorporate by reference, the analysis of 20 U.S.C. [SEE SYMBOL IN ORIGINAL] 1232g and KRS 160.700, et seq. , set forth in 99-ORD-73, we find that the facts of this appeal mandate a different outcome.
The list of Barren County students awaiting enrollment in Red Cross Elementary is different in kind from the response cards generated by Fayette County parents requesting transfer of their children from a middle school in the lowest category as a result of state assessment tests. It is a record 4 generated by the school district on which the names of students whose parents have expressed a preference on enrollment of their child at Red Cross appear. That preference may or may not reflect dissatisfaction with the school in which their child is currently enrolled and/or a concern for the adequacy of the education he or she is receiving. For this reason, the list at issue in this appeal, unlike the response cards at issue in 99-ORD-73, must be said to consist of harmless directory information which does not implicate student and family privacy interests, and which is similar, if not identical, to information the Board disclosed in response to the Daily Times' first request. The latter point is critical to our analysis. The Barren County Board of Education does not maintain that it has taken no steps to designate the requested information as directory information, and its earlier disclosure of similar, if not identical, information confirms that it has. The only difference between the two lists is that in the case of the list of out-of-district students enrolled in Barren County schools, the parents' preference has been actualized and in the case of the list of Barren County students awaiting enrollment at Red Cross Elementary, the parents' preference has not been actualized. Compare, 98-ORD-162 and 00-ORD-158 (enclosed). Under these circumstances, we find that the board's invocation of 20 U.S.C. [SEE SYMBOL IN ORIGINAL] 1232g and KRS 160.700, et seq. , is legally unsupportable.
Turning to the Barren County Board of Education's argument that the list is protected from disclosure by KRS 61.878(1)(a), 5 we find that in balancing the de minimus privacy interests implicated against the significant public interest in monitoring the Board's compliance with its own school attendance area policy, the balance tips in favor of disclosure. At page 7 of 99-ORD-73 this office determined that "already disclosed records, or information contained in these records, revealed that the Fayette County Public Schools properly executed its statutory duties arising under Chapter 158 of the Kentucky Revised Statutes," 6 that no open records related public purpose was directly advanced by disclosure of the records, and that therefore the nominal public interest must yield to the significant privacy interest that "arises from the parents' right to make an educational choice on behalf of their child without intrusion." Id.
In the appeal before us, the "already disclosed" records do not reveal whether the Barren County Board of Education is discharging its duty to insure that school attendance area policies are being uniformly and fairly applied. To this extent, this instant appeal more closely mirrors 00-ORD-119 (enclosed) in which this office held that the Jefferson County Public Schools improperly withheld records relating to traditional school enrollment and application. Distinguishing 99-ORD-73, we observed:
[N]o 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.
00-ORD-119, p. 9. We concluded that the school district erred in denying the requester access to the forms.
Extending the reasoning of that decision to the appeal before us, we find that the Barren County Board of Education's reliance on KRS 61.878(1)(a) as the basis for denying Messrs. Ellis' and Bruce's request for the list of "all students currently on the wait list to enroll in Red Cross Elementary School . . . who are . . . currently enrolled in another Barren County school" was misplaced. The public's interest in disclosure of records reflecting whether the Board has fully and fairly complied with school attendance area policies must be deemed to outweigh the privacy interests of parents who have expressed a preference for enrolling their children at an alternate school. Accordingly, we find that the Board improperly withheld the requested list from the Glasgow Daily Times.
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 Daily Times supplemented this appeal with a copy of the list provided by the Board.
2 Family Educational Rights and Privacy Act.
3 Kentucky Family Education Rights and Privacy Act.
4 The Board does not dispute that such a list exists, although there is no indication in the record of what information that list contains. The "out-of-district" list which the Board previously provided to the Daily Times contains the student's name, address, city of residence, date of birth, and current school code. Assuming that a similar list has been developed for students awaiting enrollment in Red Cross Elementary, and/or other schools in the Barren County School District, such list would satisfy Messrs. Ellis' and Bruce's request, but additional personal information, such as social security numbers, could properly be redacted pursuant to KRS 61.878(1)(a) if it appears on the list. Because they did not request the field of information containing date of birth, this field can also properly be redacted on the basis of both personal privacy and as non-responsive information. The Board is not obligated to create a list containing the names of the student's parent or guardian if the existing list does not contain this information. See, for example, 96-ORD-251 and authorities cited therein.
5 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
6 Those records revealed that in 1998 the middle school fell into the lowest category as a result of state assessment tests (decline-parental notification) , that Fayette County notified parents in the middle school attendance area of the transfer option, and that 41 parents requested the transfer option by returning response cards requesting transfer.