Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Grant County Public School District violated the Open Records Act in the disposition of WTVQ-TV reporter Heather MacWilliams' January 18, 2007, request for a copy of "the video from inside Grant County School Bus # 062 on Wed. Jan. 17th . . .[,] the school bus involved in the accident on Highway 25." For the reasons that follow, we find that the District's response was procedurally deficient but substantively correct insofar as the District's denial was based on 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act, incorporated into the Open Records Act by operation of KRS 61.878(1)(k).
In a response dated January 22, 2007, District Counsel Donald J. Ruberg notified Ms. MacWilliams:
[T]he Grant County Schools are unable to comply with this request as the production of such a videotape is exempt from Open Records since the tape contains depictions of a personal nature, the public disclosure of which would constitute a purely [sic] unwarranted invasion of personal privacy and its disclosure is prohibited by Federal law.
Mr. Ruberg did not elaborate.
On appeal, Ms. MacWilliams challenges the District's denial of her request, asserting that "this video is subject to the same rules one might find in the classroom, including the dictates of the Americans with Disabilities Act (ADA) of 1990 and a host of laws and rules governing disabled or special needs pupils." "According to this Act," Ms. MacWilliams continues "'there is no such thing as privacy aboard the school bus except for personal belongings. School bus video cameras are not directed at any person or group but record all that goes on in the school bus. '" Ms. MacWilliams did not provide any statutory reference for this quotation, and our review of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., does not confirm the presence of the quoted language in that statute.
In supplemental correspondence directed to this office following commencement of Ms. MacWilliams' appeal, Mr. Ruberg elaborated on the District's position. Characterizing the videotape as "a record containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " 1 he explained:
The video in question is of a tragic bus accident in which multiple students were injured . . . [A]t least one student's parents have specifically requested the school not release such information.
In addition, Mr. Ruberg cited the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g, and KRS 61.878(1)(k) , as interpreted in 99-ORD-217 for the proposition that "the disclosure of the videotape is prohibited by federal law. " In closing, Mr. Ruberg asserted that "this entire matter is now moot [inasmuch as] the videotape in question is no longer in the possession of the Grant County Board of Education, but rather the Kentucky State Police as part of their investigation of the accident." While we do not agree that the issue on appeal was mooted by the District's failure to maintain a copy of the videotape on agency premises, or that its response satisfied the requirements of KRS 61.880(1), we affirm the denial of Ms. MacWilliams' request on the basis of KRS 61.878(1)(k) and the Family Educational Rights and Privacy Act (FERPA).
In recent open records decisions, this office commented on the failure of public agencies to discharge their statutory duty to exercise continuous control over, and custody of, agency records. Thus, in 07-ORD-036 this office characterized as "problematic" and "ill-advised," Hope's Place Child Advocacy Center's "decision to relinquish custody of its records [to the Boyd County Commonwealth's Attorney], without retaining a copy." Similarly, in 07-ORD-020 we determined that the current Boyd County Jailer's argument that he was not the proper custodian of records generated by a previous jailer was meritless and legally unsupportable. Both decisions:
proceed[ed] from the statutory recognition that there is:
KRS 61.8715. Among "these statutes," KRS 171.680(1) requires "[t]he head of each state or local agency [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency."
07-ORD-020, p. 6 (emphasis in original). Here, as in the cited decisions, we find that the District failed to discharge its statutory duty to maintain a continuing program for the management of agency records, in contravention of KRS 61.8715, by relinquishing control of the disputed videotape without retaining a copy.
We further find that the Grant County Public School District failed to comply with KRS 61.880(1) in responding to Ms. MacWilliams' request. KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. The District discharged this duty. KRS 61.880(1) also requires public agencies electing to withhold all or any portion of a public record to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although the district vaguely asserted that "disclosure [of the videotape] is prohibited by Federal law," it did not include a statement of the specific exception authorizing the withholding of the videotape, KRS 61.878(1)(k), or the federal law engrafted upon the Open Records Act by operation thereof, 20 U.S.C. § 1232g. Moreover, the District did not provide a brief explanation of how the exception applies to the record withheld, much less provide "particular and detailed information in response to [the] request." Although many of these deficiencies were corrected in the District's supplemental response to Ms. MacWilliams' appeal, we urge the District to bear in mind that "a response to a letter of appeal, pursuant to 40 KAR 1:030 Section 2, should be viewed as an opportunity to supplement, and not supplant, an agency's initial response . . . ." 04-ORD-068, p. 3, citing 02-ORD-118.
Turning to the substantive issue on appeal, we find that the District properly relied on KRS 61.878(1)(k) and 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act, in denying Ms. MacWilliams' request for a copy of the "video from inside Grant County School Bus # 062 on Wed. Jan. 17th." We are constrained to reach this conclusion, notwithstanding the public's interest in ascertaining what transpired on the bus that may have resulted in the accident that occurred on that date, by a line of open records decisions of this office, to wit, 99-ORD-217, 02-ORD-61, and 07-ORD-005, salient portions of which were approved by the Kentucky Court of Appeals in Medley v. Board of Education of Shelby County, Ky. App., 168 S.W.3d 398 (2004).
The Family Educational Rights and Privacy Act of 1974 regulates access to "education records." That term is defined at 20 U.S.C. § 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 U.S.C. § 1232g(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. Both the Kentucky Supreme Court and this office have recognized that the Family Educational Rights and Privacy Act operates as a bar to disclosure of education records, as that term is defined in federal law and that the federal act is incorporated into the Open Records Act by KRS 61.878(1)(k). Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001); 99-ORD-217, inter alia. This exemption authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation."
The Family Education 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 U.S.C. § 1232g(a)(1)(A) thus provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 U.S.C. § 1232g(b)(1), which 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 relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities] . . . .
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).
In 99-ORD-217, the Attorney General concluded that a videotape of student activities "from inside" a school bus was an education record within the scope of the Family Educational Rights and Privacy Act, noting that our conclusion was confirmed by the United States Department of Education's Family Policy Compliance, the federal agency charged with interpreting and enforcing FERPA. Similarly, in 02-ORD-61 this office held that "photographs of students performing school work are considered confidential as education records and may be excluded from public inspection . . . ." In January 2007, the Attorney General reaffirmed this position relative to a videotape "from inside" a school bus and an incident involving the requester's son. In the intervening period, our holding in 99-ORD-217 was ratified by the Kentucky Court of Appeals in Medley, above. 2 Assessing the propriety of a school district's denial of a teacher's request to inspect a videotape "from inside" her classroom, the court "agree[d] the videotapes [used for monitoring that would reveal the identities of students] are, in fact, 'education records' . . . ." Medley, at 404.
The weight of legal authority thus supports the proposition that videotapes used for monitoring student activities, and revealing the identities of students, are education records the disclosure of which is prohibited by federal law. The only fact that distinguishes the instant appeal from the authorities cited above is the fact that the videotape also records a vehicular accident that is under investigation by the Kentucky State Police. 3 While there is an unquestionable public interest in monitoring school bus safety that would arguably be promoted by disclosure of the videotape and that would almost certainly outweigh any articulable privacy interests asserted by the District, 4 the Family Educational Rights and Privacy Act does not mandate a "comparative weighing of the antagonistic interests" 5 analysis but instead establishes an absolute bar to disclosure of education records absent parental consent. The record before us is devoid of proof of parental consent or any other fact or circumstance that would warrant us in ignoring the statutory prohibition on disclosure or otherwise departing from established legal authority. This being the case, we affirm the Grant County Public School District's denial of WTVQ-TV reporter Heather MacWilliams' January 18, 2007, open records request on the basis of KRS 61.878(1)(k) and 20 U.S.C. § 1232g.
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.
Heather MacWilliams
Donald Martin, Superintendent
Donald J. RubergO'Hara, Ruberg, Taylor, Sloan and SergentP. O. Box 17411Covington, KY 41017-0411
Footnotes
Footnotes
1 This characterization mirrors the language of KRS 61.878(1)(a).
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2 The court did not, however, ratify the ultimate holding in the open records decision and circuit court opinion that gave rise to Medley, declaring that, under an exception to FERPA, the requester, Ms. Medley, "should not be considered as 'a member of the public,' in assessing the propriety of agency denial, but should be judged in light of her position as a teacher" in whose classroom the videotape was made. Medley, at 404.
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3 It is unclear under what authority, or subject to what conditions, the District turned the videotape over to the Kentucky State Police. 20 U.S.C. § 1232g(b)(1) and (2) carve out a series of exceptions to the general rule of nondisclosure that include law enforcement. It is not, however, within the scope of our authority to assess the propriety of this action.
4 Although we do not reach the issue of the District's reliance on KRS 61.878(1)(a), inasmuch as resolution of this appeal turns on the application of KRS 61.878(1)(k) and 20 U.S.C. § 1232g, we question the District's reliance on the privacy exception in the face of this compelling public interest.
5 This is the mode of decision for determining the propriety of agency's invocation of KRS 61.878(1)(a) established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992).
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