Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
This is an appeal by a teacher contesting the decision of the Woodford County School System denying the teacher's request for a copy of an anonymous letter of complaint to the system concerning the teacher. The letter complained about the teacher's performance in the classroom. The teacher made a previous request for a copy of the same letter that was denied. The teacher made a second request through an attorney on March 31, 2003. The school system denied the second request through its attorney by letter dated April 4, 2003. This appeal of the second denial was received by this office April 30, 2003. The two issues in this appeal are: (1) whether the letter is exempt from disclosure under the Open Records Act as a preliminary document; and (2) whether the letter is exempt from disclosure because it contains information that the school system is prohibited from disclosing under federal and state law. For the reasons that follow, we determine that the school system should have disclosed the letter after redacting any information that might reasonably lead to the identity of any students or parents.
In its initial response, the school system relied on, among other things, the argument that the letter was part of an ongoing investigation and exempt from disclosure under KRS 61.878(1)(h). In its response to this appeal, the school system withdrew that argument, and so we will not consider it.
First, the school system argues that the letter is exempt from disclosure because it is a "preliminary" document. KRS 61.878(1)(i) exempts documents which are "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give a notice of final action of a public agency. " The teacher argues that where the person seeking the information is an employee of the school system KRS 61.878(3) controls and the document must be released. That statute states:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
KRS 61.878(3).
This statute has been described as an "exception to the exceptions" in KRS 61.878. See 03-ORD-030. In this case, it gives the teacher the right to see the letter whether it is preliminary or not. Because the letter is a complaint about the teacher and it relates to the teacher, it is the type of document the statute requires be disclosed to the public employee to whom it relates.
Second, the school system argues that the letter is an "educational record" and its disclosure is prohibited under both federal and state law, specifically, the Family Educational Rights and Privacy Act (FERPA), 20 USCA § 1232g, et seq. , and KRS 160.700, et seq. , respectively. The purpose of the federal Act, and conforming state law, is the protection of student and family privacy by prohibiting the release of unscreened educational records to third parties without parental or student consent. See 95-ORD-55. The teacher argues that the letter is not an educational record under the federal Act because it does not "directly relate "to the student,and cites 20 USCA § 1232g(a)(4)(A). That statute defines an "educational record" as documents which contain information directly related to a student and that are maintained by an educational agency. We are of the view that information that is maintained by a school and that can reasonably lead to the identity of a student is information directly related to a student and constitutes an educational record. Unless the school system has first given the parents and students notice and an opportunity to designate the information on a student that may be released, release is prohibited under both the federal act and state law. See 34 CFR 99.37 and KRS 160.725(1). Because the release of the information is prohibited under federal and state law, the information is exempt from disclosure under the Open Records Act . KRS 61.878(1)(K) and (L).
The teacher also argues that records that relate exclusively to an employee in their capacity as an employee of an educational agency are excluded from the definition of "educational record" under 20 USCA § 1232g(a)(4)(B)(iii) and KRS 160.700(3)(c). We do not believe that a letter that contains information that may reasonably lead to the identity of a student relates exclusively to the teacher for the purposes of excluding it from the definition of "educational record." Although the letter is anonymous and the student is not named, it does contain information about the student.
In its initial response to the request, the school system states that "[w]hile the letter at issue is anonymous, it contains information which may make the identity of the parent and student easily traceable. For example, the letter makes reference to the sex of the student and states that this student has had another teacher for several classes." We agree with the school system that this type of information could easily lead to the identity of the student. Indeed, the federal regulation defines "personally identifiable information" as, among other things, "other information that would make the student's identity easily traceable. " See 34 CFR § 99.3(f). Finally, the teacher argues that, in any event, this information can be redacted from the letter and the balance of the information disclosed. We agree. The Open Records Act places a duty on the school system to separate material that is exempt from disclosure from that which is required to be disclosed. KRS 61.878(4). Accordingly, we decide that the school system violated the Open Records Act by denying access to the letter. The school system should have redacted the exempt information that could reasonably lead to the identity of the student and disclosed the rest of the information to the teacher.
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.
Distributed to:
Carrie C. MullinsBrooks, McComb, Fields, Ruble & Mullins 318 East Main Street, Ste. 310Lexington, KY 40507
Paul B. Stahler, SuperintendentWoodford County Schools330 Pisgah PikeVersailles, KY 40383-9214
Linda Bodine, Associate PrincipalWoodford County Schools180 Frankfort StreetVersailles, KY 40383
John C. Fogle IIIChenoweth Law Office121 Bridge Street"Corner of Bridge & Second"Frankfort, KY 40601