Request By:
Donald M. WakefieldDarlene Gee, Superintendent
Carter County Schools
228 S. Carol Malone Blvd.
Grayson,
KY 41143W. Jeffrey Scott, PSC
311 W. Main Street
P.O. Box 608
Grayson, KY 41143-0608
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Carter County Board of Education violated the Kentucky Open Records Act in denying the request submitted by Donald M. Wakefield on behalf of the City of Olive Hill "for copies of any and all public records, including but not limited to, minutes, findings or conclusions, transcripts, and or [sic] audio or video recordings of an expulsion hearing conducted by the Carter County School Board with regard to [J. L.]" which apparently "was held in either March or April of 2007." Although the Board initially failed to cite the applicable statutory exception and briefly explain how it applies to any existing records which are responsive to Mr. Wakefield's request, as expressly required by KRS 61.880(1), and subsequently neglected to specify the "federal law" upon which it relied in denying access despite having a second opportunity to satisfy its burden of proof under KRS 61.880(2)(c) , significant policy implications compel this office to undertake a substantive analysis of the issue presented rather than compound this error. In sum, any such records are properly characterized as "education records" within the meaning of § 1232g(a)(4)(A) of the Family Educational Rights and Privacy Act of 1974 (FERPA), codified at 20 U.S.C.A. § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act, codified at KRS 160.700 et. seq ., and thus are removed from application of the Open Records Act by operation of KRS 61.878(1)(k) and KRS 61.878(1)(l), pursuant to which FERPA and KFERPA, respectively, are incorporated into the Act.
By letter directed to W. Jeffrey Scott, counsel for the Board, on October 25, 2007, Mr. Wakefield submitted his request, advising that his firm "has been retained to represent the City of Olive Hill in a threatened litigation concerning the arrest and attempted expulsion of a Carter County student, [J. L.]" As observed by Mr. Scott, in his letter dated November 1, 2007, "[i]t would seem appropriate that in any litigation involving [J. L.] or his parents, against the City of Olive Hill, that Interrogatories and Requests for Production of Documents served by the Defendant upon the Plaintiff, would properly disclose any records pertaining to any attempted disciplinary action against [J. L.]" In his view, the "existence or [nonexistence] of any disciplinary action at this juncture, [would seem] to be confidential and would not be a disclosable item under any open records request." Should Mr. Wakefield "serve Interrogatories and/or Request[s] for Production of Documents and be met with some type of objection by the Plaintiff's counsel," then Mr. Scott is "sure that in the course of that litigation that discovery question could be resolved."
Correctly arguing that "it is irrelevant that avenues of discovery may be available under the Rules of Civil Procedure once litigation has been initiated," since litigation is "presently only threatened," Mr. Wakefield initiated this appeal by letter dated November 5, 2007. In addition, Mr. Wakefield argues that such records are public records within the meaning of KRS 61.870(2) , "and are not exempted from disclosure by any of the fourteen (14) exemptions" codified at KRS 61.878(1), "and are not otherwise exempted from disclosure under the Act." Citing KRS 61.880(1) and Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), Mr. Wakefield also correctly observes that Mr. Scott's denial fails to specify which statutory exception the Board is relying upon and explain how it applies to the requested records.
Upon receiving notification of Mr. Wakefield's appeal from this office, Mr. Scott responded on behalf of the Board, arguing that "KRS 61.878(k) and federal law prohibit the disclosure of the requested information." According to Mr. Scott, the "very acknowledgement of any expulsion hearing concerning any student within the public schools would be a violation of federal law relative to that particular student's educational activity. These matters are confidential and are not to be disclosed." In addition, Mr. Scott argues that "the insurance company for the City of Olive Hill ha[s] demonstrated no legitimate need to obtain any records such as those requested, if they do exist." As a matter of policy, Mr. Scott contends that the "proper conduct of the common schools, the regulation of the appropriate discipline of those students in the common schools and the public's interest in maintaining the integrity of those schools, especially in light of violence occurring at schools, even the occurrence of same within the County of Carter, necessitate" denial of Mr. Wakefield's request "as not coming within the appropriate statutory requirement for disclosure. "
Clarifying that Mr. Scott has "incorrectly asserted" that he is counsel for the insurance company for the City of Olive Hill, rather than counsel for the City of Olive Hill, Mr. Wakefield replied by letter dated November 21, 2007. Elaborating upon his earlier arguments, Mr. Wakefield correctly notes that Mr. Scott, "while specifically relying upon" KRS 61.878(1)(k), "fails to reference any specific federal law or regulation that would exempt the requested documents from disclosure. " Citing Edmondson v. Alig , as well as prior decisions of this office, Mr. Wakefield accurately concludes that a public agency is "required to both specifically cite to any federal statute or regulation being relied upon, and explain how such federal statute or regulation applies" to the records being withheld. Having failed to satisfy these requirements, the Board has violated the Open Records Act in denying his request according to Mr. Wakefield.
With regard to Mr. Scott's assertion that Mr. Wakefield has not demonstrated a "legitimate need" for the records, Mr. Wakefield correctly argues that neither the identity of the requester nor his purpose in making the request are generally relevant as evidenced by prior decisions of this office. In any event, he submits "that the need to obtain public records so that a claim and threatened litigation may be properly and completely investigated and evaluated are [sic] sufficient to constitute a 'legitimate need.'" In addressing Mr. Scott's contention relative to the public interest, Mr. Wakefield notes the Board "has not shown how disclosing public records concerning an expulsion hearing would compromise the integrity of any Carter County schools, or would lead to violence, and has also failed to show how any exception applies. Such an argument is a red herring and should be rejected in evaluating" this appeal. In accordance with the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed . . ." Mr. Wakefield believes that his request on behalf of the City should be complied with. Although Mr. Wakefield is correct regarding the procedural deficiencies in the Board's initial and supplemental responses, this office must respectfully disagree on the unique facts presented insofar as the records being sought are "education records" protected by FERPA and KFERPA; the record is devoid of evidence to suggest Mr. Wakefield's client is entitled to access under any of the limited exceptions codified at § 1232g(b)(1).
As a public agency, the Board is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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 . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added.)
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1) ] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less . . . amount[] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from the Board's initial response are both any reference to KRS 61.878(1)(k) or (l), and the requisite citation of relevant federal or state law incorporated into the Open Records Act by those provisions; the mandatory brief explanation of how the exception(s) applies is also lacking. A public agency such as the Board must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1), in order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has further observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof . . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2 (emphasis added).
On appeal, the Board references KRS 61.878(1)(k), but still neglects to cite which "federal law" is being relied upon as the basis for denial and explain how it applies here. "In denying [Mr. Wakefield]'s request, [Mr. Scott] did nothing more than cite the ostensibly relevant exceptions to public inspection. Although he cited KRS 61.878(1)(k) and (l), relating to records made confidential by" federal or state law, Mr. Scott "did not cite the applicable" federal or state law. Edmondson , quoting 94-ORD-154. "Nor did he explain how [the relevant exceptions] appl[y]" to the records at issue. Id . To summarize, neither the initial nor the supplemental response of the Board contains the specificity envisioned by KRS 61.880(1).
Bearing in mind that public agencies such as the Board have the burden of proof per KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that the Board violated the Act in failing to comply with the mandatory terms of this provision. Edmondson v. Alig, supra, at 858; see 97-ORD-170. When responding to future requests, the Board should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. 2 That being said, this office is compelled to undertake a substantive analysis of the issue presented rather than compound this error by instructing the Board to release protected records.
In Edmondson , the Court recognized that despite undeniable deficiencies in the agency's response, the circuit court had improperly ordered release of the records, "presumably as the only sanction available . . . ." Edmondson at 859. Noting the "crucial issue-that of the exempt status of the material sought to be disclosed-has been overlooked entirely[,]" the Court held that "it is incumbent upon the circuit court to examine this material and to make a determination as to whether it is substantively exempt from disclosure" lest the agency's error be compounded by disclosure of records intended to be protected from public scrutiny. Id . 3 As in 00-ORD-148, this office finds that although the Court did not extend the holding of Edmondson to the Office of the Attorney General, "which acts in a quasi-adjudicative role in resolving open records disputes pursuant to KRS 61.880(2), and this office rarely assays to invade the circuit courts' prerogative, the appeal before us has far-reaching policy implications for local school boards which compel us to undertake a substantive analysis of the disputed records." Id., p. 4.
Among those records excluded from application of the Open Records Act in the absence of a court order are "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation. " KRS 61.878(1)(k). Both FERPA, 4 codified at 20 U.S.C.A. § 1232g, and the implementing regulations codified at 34 C.F.R. § 99 et seq ., are incorporated into the Open Records Act by the express language of this provision. In conjunction with its state counterpart, KFERPA, codified at KRS 160.700 et seq ., and incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 5 FERPA regulates access to "education records" like those at issue; § 1232g(a)(4)(A) defines this term 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 or by a person acting for such agency or institution." 6 More specifically, FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of prior written consent from a parent or eligible student. FERPA is also intended to ensure that parents of students, and students themselves, if over eighteen years of age, have access to their education records.
Conversely, § 1232g(b)(1) 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, as defined in paragraph (5) of subsection (1) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to [specified individuals under specified conditions listed at (b)(1)(A)-(J)].
In other words, the goal of this legislation 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.'" 99-ORD-217, p. 5 (citation omitted). 7 To that end, the term "education records" has been and was "intended to be broadly construed, and the exceptions . . . must be narrowly construed since the value of [the parents'] right of access and [students'] right of privacy "depreciates with every item that is excluded from the definition of 'education record.'" OAG 91-177, p. 4 (citation omitted); 98-ORD-162. With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), which are 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 FERPA operates to bar disclosure of education records, as that term is defined in federal law, and that FERPA 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 .
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. Likewise, 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. 07-ORD-005. As recently as March of this year, the Attorney General had occasion to uphold this line of authority. 07-ORD-037. During the interim, our holding in 99-ORD-217 was ratified by the Kentucky Court of Appeals in Medley v. Board of Education of Shelby County, Ky.App., 168 S.W.3d 398 (2004). 8 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.
Critical to resolution of the question presented is the longstanding recognition that in defining "education records," the "congressional intent was to fashion a broad definition." Belanger v. Nashua, New Hampshire School District, 856 F.Supp. 40, 49 (D. N.H. 1994). Thus, records of students "do not have to be related to academic matters to be 'education records' under FERPA . . . ." United States v. The Miami University, 91 F.Supp.2d 1132, 1149, n. 17 (S.D. O, 2000). Given the similarity between the federal definition of "education records" codified at § 1232g(a)(4)(A), and that found at KRS 160.700(3) of KFERPA, this office has deemed them to be equally inclusive. 00-ORD-148, p. 7. In our view, any existing "minutes, findings or conclusions, transcripts, [and/or] audio or video recordings of an expulsion hearing conducted by the [Board]" concerning the specified juvenile would clearly fall within the parameters of the intentionally expansive definition of "education records" found in FERPA and KFERPA. Such records would necessarily contain information related to J. L., and would be maintained by an educational agency or institution, namely, the Board/Carter County Schools; disclosure of them could therefore result in forfeiture of federal funding. Here, the record is devoid of any proof that J. L. or his parents gave written consent, or any other facts or circumstances that would justify ignoring the statutory prohibition on disclosure. Because this appeal presents no reason to depart from established legal authority, the Board's denial is affirmed.
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 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 As a corollary proposition, the Board must bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. Although the Board addressed these deficiencies to a limited extent on appeal, the Open Records Act "presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.
3 More specifically, the Court explained:
If indeed it is exempt, then its disclosure as a sanction against [the agency] is inappropriate and impermissible. Under such circumstances as these, it may be that the legislature has failed to provide an appropriate sanction as to the custodian of records. But that is an omission that needs to be addressed by appropriate remedial legislation rather than by releasing materials intended to be protected from public scrutiny. This error cannot be remedied by committing another and thus compounding mistakes at the possible expense of due process. It is the substance of the material sought to be discovered that will determine the propriety of the court's order-not the desire to fashion a sanction against [the public agency] .
Edmondson at 859.
4 More specifically, § 1232g(a)(1)(A), the "exception" to the exception, 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 of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.. . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
5 KRS 61.878(1)(l) authorizes public agencies to withhold public records or information "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
6 As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id . To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
7 In 99-ORD-217, this office found it "reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act, are intended to serve these same purposes." Id., p. 8.
8 In Medley , the Court did not ratify the ultimate holding of the open records decision and circuit court opinion, declaring instead 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.