Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Public Schools (JCPS) properly denied Rita J. Ward's January 19, 2007, request, for the phone numbers of four JCPS students. For the reasons that follow, we find that the JCPS properly relied on KRS 160.700, et seq. , 20 U.S.C. § 1232g, and 34 C.F.R. § 99.37, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), 1 in denying Ms. Ward's request.
By letter dated January 25, 2007, Lauren E. Roberts, Public Information Officer, JCPS, denied Ms. Ward's request, advising:
Please be advised that "Procedures for Confidentiality of Student Education Records," the document you refer to in your January 19, 2007, letter to Rosemary Miller, general counsel, represents an internal procedure that is not a policy of the Jefferson County Board of Education nor has the procedure been Board approved. The Board policy concerning directory information is contained on page 20 of the Jefferson County Public Schools Code of Acceptable Behavior and the Student Bill of Rights and does not include phone numbers.
Pursuant to KRS 61.878(1)(k) and (l), these documents are exempt from the Open Records Act because they contain student information the release of which is restricted by state and federal law (KRS 160.705, et seq. , Kentucky Family Education Rights and Privacy Act and 20 U.S.C. Section 1232g, Family Education Rights and Privacy Act) . Therefore, your request is denied. We cannot provide you with this information without a signed release from the student's parent or guardian.
Shortly thereafter Ms. Ward initiated the instant appeal. In her letter of appeal, she asserts, in part:
Ms. Roberts states in her response to me that the policy on directory information is contained on page 20 of the JCPS Code of Acceptable Behavior and Discipline. The Code of Acceptable Behavior states on page 20, # 4 that "the district also may release directory information, including name and address, without written consent unless the eligible student and/or parent/guardian notifies the district in writing not to release the information." This statement in the Code of Acceptable Behavior is one means by which JCPS fulfills its responsibility under KRS 160.175(1) to give public notice to each student and parent that they have a right to limit the information that can be released as directory information without prior consent and is not meant to reflect the entire JCPS policy for the release of directory information. See Procedures Manual, p. 7, G to review the entire policy regarding notification.
After receipt of notification of the appeal, Ms. Roberts, on behalf of JCPS, provided this office with a response to the issues raised in the appeal. Elaborating on JCPS' original response, she explained, in relevant part:
Both the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g and KRS 160.720 prohibit a school district from releasing personally identifiable student information to third parties, other than directory information, without the consent of the parent or eligible student.
KRS 160.725 states:
KRS 160.170 states:
KRS 160.295 provides that each board of education in Kentucky may adopt a code of student rights and responsibilities. That statute also provides that the code of student rights and responsibilities may define the rights and responsibilities regarding the "[r]ight of access by a student to his or her own records and guarantee of the confidentiality of a student's academic records outside of the school system, except upon written authorization of the student or his or her parents or guardians. "
In compliance with KRS 160.710 and KRS 160.295, the Jefferson County Board of Education has determined that the means and method by which it will give parents and eligible students notice of the rights of privacy and confidentiality accorded student records is through the district's policy contained in the Code of Acceptable Behavior and Student Bill of Rights ("the Code"). The Jefferson County Board of Education adopted the Code that is currently in effect on March 14, 2005. A copy of the Board Agenda item is attached. The Code is distributed to all parents and students at the beginning of each school year. The Code states that, "the district also may release directory information, including name and address, without written consent unless the eligible student and/or parent/guardian notifies the district in writing not to release the information." (p. 20. Emphasis added). The Code does not designate student phone numbers as directory information. Therefore, Ms. Ward is not entitled to receive the students' phone numbers without the written consent of the students' parents or guardians, which she has not provided to the district.
We affirm JCPS's denial of Ms. Ward's request for the phone numbers of four JCPS students, as the Jefferson County Public Schools have not taken the necessary steps to designate student phone numbers as directory information that can be released without parental consent.
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 U.S.C. § 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, 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.)
Under 20 U.S.C. § 1232g(a)(5)(B) and 34 C.F.R. § 99.37 for federal procedures and KRS 160.725(1) for state procedures, an educational agency is permitted to designate certain categories of student information as "directory information." 34 C.F.R. § 99.37 provides:
(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:
(1) The types of personally identifiable information that the agency or institution has designated as directory information;
(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and
(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.
(Emphasis added.)
As noted above, public notice of the Board's policy on directory information is contained in the JCPS Code of Acceptable Behavior and Discipline, which is distributed to all parents and students at the beginning of each school year. 2 A student's name and address are the only categories of information that have been designated as directory information. Since the Board has not given public notice to parents or eligible students that student phone numbers will be designated as directory information, the JCPS is prohibited from releasing that information under FERPA and KFERPA. Accordingly, we affirm the denial of Ms. Ward's request for student phone numbers under authority of KRS 160.700, et seq. , and 20 U.S.C. § 1232g, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l). 98-ORD-162 and 00-ORD-158.
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.
Rita J. WardLegal Aid Society416 W. Muhammad Ali Blvd., Suite 300Louisville, KY 40202
Lauren E. RobertsPublic Information OfficerJefferson County Public SchoolsVanHoose Education CenterP. O. Box 34020Louisville, KY 40232-4020
Rosemary Miller, Esq.Office of CounselJefferson County Public SchoolsVanHoose Educational Center3332 New Burg RoadLouisville, KY 40232-4020
Footnotes
Footnotes
1 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[.]
2 In response to Ms. Ward's argument that JCPS' Procedures for Confidentiality of Student Education Records manual sets the Board's policy for directory information, Ms. Roberts explained that the manual is an internal document that gives a recitation of the state and federal law and does not purport to be, nor was it intended to be, the district's policy on the confidentiality of education records. She further explained that although the document recites all the categories of information that may be designated by the Board as directory information, the Board chose not to designate all possible categories, but chose to limit its designation of directory information to a student's name and address, as stated in the Code of Acceptable Behavior and the Student Bill of Rights, the official policy of the Board. We agree with JCPS' position. The listing of all categories of directory information does not deprive the Board of its discretion to limit the categories of directory information and to put parents and eligible students on notice as to precisely what that directory information is. Ms. Roberts advised that the manual will be revised to replace the description of the categories of information that may be designated as directory information with the categories actually designated as directory information by the Board.