Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville properly relied on KRS 61.878(1)(k) and (l), incorporating the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700, in partially denying Rudolph S. Parrish's August 16, 2012, request for "correspondence in any form sent to and/or received by members of the faculty of the Department of Bioinformatics and Biostatistics, members of the unit administration of the School of Public Health and Information Sciences (SPHIS) . . ., and/or students of SPHIS pertaining to the graduate course PHST 682 'Multivariate Statistical Analysis' during the period from January 1, 2012, to present." 1 Dr. Parrish is the instructor in PHST 682 and is permitted by FERPA and KFERPA to review education records if he is determined to have a "legitimate educational interest" 2 or "legitimate education interest and purpose." 3 Because the University failed to fulfill its burden of proving that Dr. Parrish's interest is not legitimate, we do not affirm its partial denial of his request. In our view, Medley v. Board of Education of Shelby County, 168 S.W.3d 398 (Ky. App. 2004) is dispositive of the issue on appeal.
In its August 29, 2012, 4 response, the University advised Dr. Parrish that "five email strings to/from students" had been withheld "as they are education records" protected by federal and state law as well as by university policy. Shortly thereafter, Dr. Parrish initiated this appeal. He stated:
I am the faculty member assigned to teach the graduate course PHST 682 . . . and I have corresponding professional concerns for the students' welfare in this regard . . . I do not believe that the records in question necessarily constitute educational records, given the presumed content, and as such they should not be exempt. In the event that they are educational records, I submit that, as the instructor in the course, I have a right to inspect the records in order to fulfill my responsibility to serve and protect the students' educational interests. Particularly, it is my responsibility to assess students' academic fitness for enrolling in the course.
Additionally, Dr. Parrish noted, the records are relevant "to negative employment actions taken against me . . . by the department chairperson."
In supplemental correspondence directed to this office after Dr. Parrish initiated his appeal, the University amplified on its position:
Dr. Parrish claims he should have access to the information because of his "work performance" and he asserts that it is his "right to inspect the records in order to fulfill my responsibility to serve and protect the students' educational interests." The Family Educational Rights and Privacy Act establishes the rights of students in their records. It does not create a right in third parties to access student records. FERPA does permit, in certain circumstances, the disclosure of student records within the university without the consent of a student to an official which would include a university faculty member. However, there is no absolute right of a university official to access student records. As noted in the U of L procedures concerning FERPA "Although a person may be regarded as a 'university official, ' he or she does not have inherent rights to any and all education record information." (Relevant portion see attachment # 2 . . . .) In this instance, it was determined that the faculty member did not have a legitimate educational interest in the emails which were withheld. (Attachment # 3 released to Parrish in response to request).
The referenced attachments consist of a general FERPA policy statement and emails exchanged by Dr. Parrish and Dr. K.B. Kulasekera, Chairman of the Department of Bioinformatics and Biostatistics, regarding access to registration records for PHST 682. They reflect Dr. Kulasekera's delegation of course enrollment qualification decisions to the graduate director rather than the course instructor. They do not contain a discussion of the legitimacy of Dr. Parrish's interest in the records withheld.
The Kentucky Court of Appeals addressed a similar issue in Medley v. Board of Education of Shelby County, 168 S.W.3d 398 (Ky. App. 2004). In Medley , the court analyzed a teacher's request for videotapes of her classroom in light of her position as a teacher rather than as a member of the public. Acknowledging that both FERPA and KFERPA contain an exception to the rule of nondisclosure of education records for a teacher with a legitimate educational interest in the records, the court concluded that the record on appeal did not support the lower court's implicit finding that the teacher's request "was not made pursuant to a legitimate educational interest." Medley at 405. The court reasoned:
Under our interpretation of the statutes in question, the only provision of FERPA or KFERPA that would prevent Medley from viewing the videotapes would be a determination that her purpose for requesting the videotapes was not "a legitimate educational interest." As a teacher, Medley is expressly permitted by FERPA and KFERPA to view education records, so long as a legitimate educational interest is established. The court identified Medley as an educator, yet, nonetheless, found she was precluded from viewing the videotapes. Thus, the circuit court impliedly found Medley's request was not made pursuant to a legitimate educational interest.
Viewing the record as a whole, there is no substantial evidence to support this finding. The record is, in fact, void of any discussion of Medley's educational interest in the videotapes, other than the statement made in her initial request that the videotapes would be beneficial to improve her teaching performance and manage her classroom. Moreover, [the superintendent] and the Board did not fulfill their burden of proof by establishing that Medley's interest was not legitimate. Since the circuit court's decision regarding the legitimacy of Medley's educational interest was not supported by substantial evidence, we hold that the finding was clearly erroneous.
Id.
Although the record in the appeal before us is not "void of discussion" of Dr. Parrish's educational interest in the emails relating to registration for the graduate course he taught, the University did not fulfill its burden of proof by establishing that his interest was not legitimate. Dr. Parrish asserts that, as an instructor, he must:
closely monitor my classes and the students taking them. For the course in question, this includes initially assessing student readiness to enroll in the course, particularly by way of providing permission to enroll for those students not meeting the course prerequisites/co-requisites, which was the case here. Anyone . . . who overrides that authority . . . negatively impacts on the instructor's ability to fulfill his/her pedagogical responsibilities to the affected students and to the other class members.
In its original response to Dr. Parrish's request the University gave no indication that it had considered whether he had a legitimate educational interest in the records. In its supplemental response the University referenced its FERPA policy, attaching the "relevant portion," and provided copies of Dr. Parrish's email exchange with Dr. Kulasekera to support the conclusion that Dr. Parrish did not have a legitimate educational interest. Those emails reflect Dr. Kulasekera's determination that, "Starting immediately, the graduate director will make decisions on course enrollment qualifications rather than the course instructor. " This determination did not, however, nullify Dr. Parrish's interest in monitoring his classes, and the students taking them, to assess their readiness. Consistent with the FERPA policy submitted to this office by the University, Dr. Parrish's interest in the records seems, therefore, to have been premised on his commitment to fulfilling his professional responsibility. Nothing in the record on appeal suggests otherwise. Based on the analysis in Medley , we find that the University improperly withheld the disputed email from Dr. Parrish on the basis of KRS 61.878(1)(k), incorporating FERPA, and KRS 61.878(1)(l), incorporating KFERPA, since it did not prove that Dr. Parrish's interest in the email was not legitimate.
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:
Rudolph S. Parrish, PhD.Sherri PawsonAngela D. Koshewa
Footnotes
Footnotes
1 The Family Educational Rights and Privacy Act, (FERPA), regulates access to "education records" by conditioning receipt of federal funds on compliance with disclosure provisions contained in the Act. Its counterpart, the Kentucky Family Education Rights and Privacy Act (KFERPA), regulates access to education records.
2 20 U.S.C. § 1232g(6)(1)(A) thus provides:
(1) 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 (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following--
(A) other school officials, including teachers within the educational institution or local educational agency who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required[.]
3 KRS 160.720(2) states:
(2) Educational institutions shall not permit the release or disclosure of records, reports, or identifiable information on students to third parties other than directory information as defined in KRS 160.700, without parental or eligible student consent except to:
(a) Other school officials, including teachers, with legitimate education interests and purposes.
4 The University's written response was not issued within three business days and was therefore untimely. KRS 61.880(1).