10-OMD-128 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Meetings Decision

At issue in this appeal is whether the Marion County Board of Education violated the Kentucky Open Meetings Act during its June 8, 2010, meeting by going into closed session for the purpose of discussing "two (2) requests by individual students for waivers from the attendance areas established by the Board." In citing KRS 61.810(1)(f) , rather than KRS 61.810(1)(k), as the specific provision authorizing the session, the Board failed to comply with KRS 61.815(1)(a); however, this office will not belabor the point as the Board acknowledged including "an inaccurate statutory citation" in "the agenda and during the meeting," in responding to both Lebanon Enterprise Editor/General Manager Stevie Lowery's complaint and her appeal. 1 Because this appeal presents no basis to depart from the reasoning found in 97-OMD-139, upon which the Board relied in arguing that consideration of a request for a waiver "include[s] discussion of confidential information regarding the individual students and their families," which is protected under the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, and the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. , this office must conclude that FERPA/KyFERPA, in conjunction with KRS 61.810(1)(k), authorized the closed session at issue.

By letter directed to Board Chairwoman Sister Kay Carlew, Superintendent Donald W. Smith, and Board Attorney Robert L. Chenoweth on June 9, 2010, Ms. Lowery submitted her complaint alleging that the subject discussion concerned "a redistricting issue that could potentially affect an entire neighborhood of children in the school district," which "does not fall under the exemptions to the Open Meetings Act. " To remedy the alleged violation, Ms. Lowery proposed that the Board "inform us about the discussion that took place during the closed session, " and that the Board and Superintendent "(with the help of the board attorney) educate themselves on the Open Meetings Law." In her undated response, 2 Sister Carlew asserted that with the exception of the admitted procedural violation, "the Board's action in going into closed session was appropriate." Citing FERPA, KyFERPA, and 97-OMD-139, Sister Carlew asserted that said "privacy provisions prohibit not only the release of educational records, but also prohibit the oral dissemination of information contained in those educational records." According to Sister Carlew, the Board's discussion relating "to these two waiver requests necessarily included discussion of the attendance areas where the students resided. However, the closed session was not to discuss modification of the attendance areas." Sister Carlew acknowledged that "any discussion of redistricting must be addressed during an open session. "

Noting that from what she understood, "the information that was discussed was 'directory information,' and more specifically, a student's address, and that no information was actually disclosed "that would be considered an 'education record' of a student," Ms. Lowery initiated this appeal. Upon receiving notification of Ms. Lowery's appeal from this office, Mr. Chenoweth responded on behalf of the Board. As Mr. Chenoweth explained:

An individual parent's request for a transfer must be based on physical, psychological, or educational reasons, or based on family hardship. The application for a change in school assignment requires the parent to provide the reason for the request, including details regarding any claimed family hardship. These requests are considered by the Board on a case-by-case basis. The information contained in the forms goes beyond the student's name and address, but includes this other detailed information regarding the students and their families which is protected from public disclosure or discussion by [FERPA and KyFERPA]. 3 Because these individual requests include this confidential information protected by FERPA and KyFERPA, the Board is authorized to conduct these discussions in closed session. See KRS 61.810(1)(k) and 97-OMD-139.

In 97-OMD-139, the Office of the Attorney General (OAG) quoted from the federal FERPA statute, and iterated that FERPA does not relate solely to documents, but to the information contained therein, and upheld a closed session discussion of student records and private personally identifiable student information. . . . Ms. Lowery is simply incorrect that the information discussed during the closed session constituted mere "directory information" under the above-cited statutes. While the discussion of these two waiver requests necessarily included reference to the students' names and addresses, the discussion was not merely about their names and addresses. During the discussion, the Board learned that there was widespread disinformation regarding the location of one of its attendance area boundaries, but that information was part of the discussion of one of the parents' reason for making the application for change in assignment, not as an independent discussion of attendance area boundaries.

. . .

[T]he Board did not discuss this boundary issue except to the extent that it related to the individual application and the parent's reason for seeking a waiver from the existing attendance area. The Board appreciates that any discussion of the boundary issue in relation to changing the attendance boundaries or taking action which affects more than the individual applicant must be discussed in open session. In light of this information having come to the Board's attention on June 8, 2010, a public session of the boundary issue is anticipated to be held at a future regular or special meeting. The mere fact that this information came to the Board's attention during an otherwise proper closed session does not negate the propriety of going into closed session as required by FERPA and KyFERPA to discuss and entertain individual parental requests for change in school assignment.

In summary, Mr. Chenoweth acknowledged that the Board "referenced the incorrect statutory subsection in its agenda and during the meeting, but otherwise provided the specific reason for going into closed session, and the closed session was limited to a discussion of information protected by FERPA and KyFERPA and therefore excluded from public discussion by KRS 61.810(1)(k)." 4 When viewed in conjunction, KRS 61.810(1)(k), 20 U.S.C. § 1232g(b)(1), and 34 C.F.R. § 99.3, seem to validate this position. In the absence of any binding authority to the contrary, this office finds in favor of the Board consistent with 97-OMD-139.

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, 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. 5 FERPA regulates access to "education records," defined at § 1232g(a)(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 education agency or institution or by a person acting for such agency or institution." FERPA also precludes disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. As this office understands it, the goal of this legislation is "'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). 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.

Resolution of this Open Meetings dispute, as previously indicated, turns on the language of KRS 61.810(1)(k), 6 20 U.S.C. § 1232g(b)(1) 7 and 34 C.F.R. § 99.3. 8 Although this office has applied FERPA (and KyFERPA) in the context of appeals filed under the Open Records Act on multiple occasions, the question of how FERPA applies in the context of an Open Meetings dispute, and more specifically, whether discussion of information contained in "education records" may be held in closed session, has arisen far less frequently - only twice to be exact. In 97-OMD-139 and 98-OMD-142, the Attorney General held that the Housing Appeals Committee and the Financial Aid Professional Judgment Committee, respectively, were public agencies for purposes of the Open Meetings Act. Pursuant to KRS 61.810(1)(k) and 20 U.S.C. § 1232g, the Attorney General determined that each committee was authorized to discuss the matter entrusted to it during a closed session.

Having quoted the definition of "education records," and the language of 20 U.S.C. § 1232g(b)(1), in 97-OMD-139 the Attorney General reasoned as follows:

It is the opinion of this office that 20 U.S.C. § 1232g(b)(1) bars not only the release of education records, but also the disclosure of personally identifiable information in those records, including information relating to student housing, and specifically housing appeals. Although there are no published decisions supporting this position, it is confirmed by Ellen Campbell, program specialist in the Family Policy Compliance Office of the U.S. Department of Education, the agency charged with interpretation and enforcement of FERPA. Ms. Campbell indicates that her office has concluded that information pertaining to student housing falls within the definition of education records, and therefore cannot be disclosed to third parties in the absence of a parent or eligible student's prior written consent.

Ms. Campbell also confirms that FERPA restricts discussion of education records and personally identifiable information in those records in a public meeting. She notes that according to the federal regulations implementing FERPA disclosure means "to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means." 34 CFR Part 99.3. Clearly then, public discussion of personally identifiable information, including student housing information, is restricted in the same manner as release of records containing that information. Eastern Kentucky University [the Marion County Board of Education] risks the loss of federal funds if it engages in public discussion of these matters. Pursuant to KRS 61.810(1)(k), the Housing Appeals Committee [the Board] may properly go into closed session to discuss housing appeals [individual requests for a change in school assignment including] since federal law requires it to do so. See also KRS 160.720(2), the state analogue to the Family Educational Rights and Privacy Act, restricting "release or disclosure of records, reports, or identifiable information on students to third parties other than directory information . . . without parental or eligible student consent."

In the absence of any binding authority to the contrary, this office reaches the same result here. 9 Because federal and state law not only prohibit disclosure of "education records," but also personally identifiable information contained therein, and 34 CFR § 99.3 specifically defines "disclosure" to include oral communication, the Marion County Board of Education was permitted under KRS 61.810(1)(k) to discuss the individual requests for a change in school assignment during the closed session held on June 8, 2010.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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 proceedings.

Stevie LowerySister Kay CarlewDonald W. SmithRobert L. Chenoweth

Footnotes

Footnotes

1 Contrary to the Board's assertion, however, the Act does not "recognize a class of violations of lesser gravity then the remaining class of violations and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3.