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 Elizabethtown Independent School District properly relied on KRS 61.878(1)(a), 1 (k), 20 USC § 1232g, and KRS 160.700, et seq. , in denying News-Enterprise Education Reporter Patrick Avery's May 28, 2003 request for a list of all students who attend Elizabethtown Independent Schools under limited guardianships, a list of all students who attend Elizabethtown Independent Schools on contract, a list of all students who are on a waiting list to attend a school in the district, and a list of all students who attend Elizabethtown Independent Schools. Based on this office's decision in 98-ORD-162 and 00-ORD-158, and because the Elizabethtown Independent School District has not taken the necessary steps to designate any student information or directory information that can be released without parental consent, we find that the District properly relied on 20 USC § 1232g and KRS 160.700, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), 2 in denying Mr. Avery's request.
In his May 29, 2003 response to Mr. Avery's request, Elizabethtown Independent School Board Attorney Jerry M. Coleman advised:
The Family Education Rights [sic] and Privacy Act (FERPA) contains statutory provisions which prohibit this information from being made public. 20 U.S.C. 1232 (G) [sic], Section 5A and B prohibit the information you seek unless the School Board has sought to make this information public and has given the parents of the students a reasonable period of time in which to inform the School Board of their desire that said information not be released without their prior consent.
Lastly, KRS 160.705 (Kentucky's equivalent of the Family Education [sic] Rights and Privacy Act 3 provides that this information is confidential and shall not be disclosed unless there has been a waiver signed by the parent or an eligible student or pursuant to KRS 160.725 when the educational institution has sought to make this information public and has given the parent or eligible student an opportunity to inform the institution that the information designated should not be released without prior consent.
Mr. Coleman explained that the District "has not sought to make this public information nor have the parents of the students been given the opportunity to inform the School Board of their desire that said information not be released without their prior consent." Noting that the parents in the District have signed no waivers, he denied Mr. Avery's request. Unpersuaded, Mr. Avery initiated this appeal on May 30, 2003, asserting that the requested information is public information the disclosure of which will advance the public's "right to know about the enrollment practices of the . . . District."
In supplemental correspondence directed to this office following commencement of Mr. Avery's appeal, Mr. Coleman attempted to distinguish the facts presented in this appeal from the facts before us in 03-ORD-120. In that decision, the Attorney General held that the Barren County Board of Education improperly relied on 20 USC § 1232g and KRS 160.700, et seq. , in denying a request for a list of students on a wait list to attend an elementary school in the district, including the students' names, guardians' name, and legal mailing address, because the information had been designated as directory information and similar, if not identical, information had previously been released. Mr. Coleman emphasized that, unlike Barren County, the Elizabethtown Independent School District has designated no student information as directory information, has never released student information, and has not obtained waivers from the parents of students enrolled in the district. Based on these representations from the Board's attorney, we must affirm the denial of Mr. Avery's request.
At page 6 of 03-ORD-120, this office emphasized that the Barren County Board of Education did "not maintain that it has taken no steps to designate the requested information as directory information, and [that] its earlier disclosure of similar, if not identical, information confirms that it has." By way of contrast, we cited 98-ORD-162 and 00-ORD-158 in which the Attorney General affirmed two school districts' denials of open records requests for enrollment records because those records contained personally identifiable student information that had not been properly designated as directory information.
In 98-ORD-162, this office approved a school district's denial of an open records request submitted by another school district for records relating to fifty-six named students because the school district to which the request was directed had "not taken the necessary steps to designate any information in its student education records as directory information[, including] information which would customarily be treated as such, namely the student's name, address, telephone listing, and date and place of birth. " 98-ORD-162, p. 3. This being the case, the district was foreclosed from releasing the requested records without the written consent of the student's parents by FERPA and KFERPA. Fundamental to the decision was the recognition that "20 USC § 1232g(a)(4)(A) requires that an education record directly relate to a student [, and] this requirement is satisfied if a record is 'associated in any manner with an identifiable student' [citation omitted] . . . ." 98-ORD-162, p. 4. 34 C.F.R. § 99.3 defines "personally identifiable information" as, inter alia, the student's name and address. Because the requested records identified students by name and address, we determined that the records were education records which the district could not release without parental consent.
Similarly, in 00-ORD-158 this office approved a school district's denial of an open records request for enrollment records because the district had not taken steps to designate any information contained in its student records as directory information, and because "the term 'education record,' as it is defined in both federal and state law, is all-encompassing . . . [and includes] 'listings' of personally identifiable student information." 00-ORD-158, p. 4. At page 5 of that decision, we observed:
Although statutory mechanisms exist for designating information directly related to a student, including name and home address, as directory information, 4 the . . . school district has not done so. [The requester's] argument that disclosure of this "harmless directory-type information" does not implicate the privacy interests protected by FERPA and KFERPA is therefore not persuasive. (Emphasis added.)
Because the Elizabethtown Independent School District has not implemented the statutory mechanism for designating any information directly relating to its students as directory information, the facts of this appeal mirror the facts in 98-ORD-162 and 00-ORD-158 and we must affirm the district's denial of Mr. Avery's request. Compare, 03-ORD-120. The consequences of noncompliance with FERPA which, along with KFERPA, regulates access to "education records" in Kentucky, are grave indeed. School districts which disclose such records without parental consent run the risk of withdrawal of federal funds. 5 Notwithstanding the fact that disclosure of these education records would advance the public's right to know, the District cannot properly release the records to Mr. Avery.
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 Because we affirm the District on the basis of KRS 61.878(1)(k) and (l), incorporating the federal and state prohibitions on disclosure of education records without parental consent, we do not address the argument that KRS 61.878(1)(a) also authorizes nondisclosure of these records.
2 KRS 61.878(1)(k) and (l) authorize public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
3 KFERPA.
4 Citing 20 USC 1232g(a)(5)(B) and 34 C.F.R. § 99.37 for federal procedures and KRS 160.725(1) for state procedures.
5 20 USC § 1232g(b)(1) thus provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information [meaning information related to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] ) of student's without the written consent of their parents to any individual, agency, or organization other than [to certain enumerated officials and organizations, and in connection with certain activities] . . . .