Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Hazard Community and Technical College violated the Open Records Act in denying Darrell Herald's January 14, and February 6, 2013, requests for "9 letters written to the College that were particularly critical of Arzella Howard and Patricia A. Herald," instructors in the college's nursing program. Mr. Herald did not identify himself as Ms. Howard's and Ms. Herald's attorney in his original records requests. Those requests were ignored, prompting him to initiate this appeal. 1 On appeal, Mr. Herald identified Ms. Howard and Ms. Herald as his clients, asserting that their interest in the letters was precipitated by their desire "to determine if they were ineffective in their teaching methods, and if they need to make any changes in their methods to meet the academic needs of their future students." 2 The college's belated denial of his/their requests, which was based on the Family Educational Rights and Privacy Act, proceeded from this understanding. We find that the denial was, to the extent case law addresses a "legitimate educational purpose," 3 substantively incorrect. Although the college may properly redact identifying information that "makes the student's identity 'easily traceable,' such as name, address, or personal characteristics" Hardin County Schools v. Foster, 40 S.W.3d 865, 869 (Ky. 2001), Ms. Howard and Ms. Herald are entitled to copies of the letters under the rule announced in Medley v. Board of Education of Shelby County, 168 S.W.2d 398 (Ky. App. 2004), for the "legitimate educational interest" they articulate.
In a response to this office's notification of receipt of Mr. Herald's appeal, Kentucky Community and Technical College System denied receipt of the January 14 request but made no reference to the February 9 request. 4 Having received the requests as an attachment to the notification, KCTCS refused to honor them, characterizing the letters of complaint as "educational records" that are generally shielded from disclosure by FERPA 5 and specifically shielded from disclosure to Ms. Howard and Ms. Herald because they "do not have a legitimate educational interest in those documents." Counsel for KCTCS observed:
A legitimate educational interest is not specifically defined in FERPA, however it is generally held to be a "demonstrated 'need to know' by those officials of an institution who act in the student's educational interest." The complaint has been resolved, the faculty were not disciplined or adversely affected in any way as a result of the complaint process, the students are no longer enrolled in classes taught by these faculty, and the matter is closed, except for the interest evinced by these faculty.
Although counsel did not identify his sources, he stated that the college had "received information that the faculty wants the letters in order to file defamation lawsuits against the students" and expressed concern about "the chilling effect on the rights of students to file good faith complaints" that required disclosure might engender.
Pursuant to KRS 61.880(2)(c), the Attorney General thereafter solicited additional information from the parties, as well as copies of the records in dispute, to facilitate our review of the issues on appeal. In response to our questions about existing policies and practices "for determining whether educators who request access to education records have a legitimate educational interest in the records sought," KCTCS amplified on the college's position:
The students invoked the KCTCS Student Code of Conduct in making these statements. During the course of the investigation into their complaint, the faculty members were shown redacted copies of the documents. In addition to the investigation conducted by HCTC staff, a staff member from the KCTCS System office traveled to HCTC to review the situation. By the time this review was completed, the students who had filed complaints had been allowed to withdraw from the class in question and permitted to reapply and readmitted to the NIP 210 course at a different campus in Spring 2013.
Logically, a complaint filed under the Code of Conduct necessarily is "directly related" to the student. The letters discuss the students' personal experiences, and in some instances, their grades. By the time the faculty requested copies of the letters, the students were no longer in their class; they had no legitimate educational interest in these documents. KCTCS does not have a standardized policy regarding access to student records because these decisions are made on a case-by-case basis. Since these faculty were no longer teaching the students, there is no case to be made that the faculty members had any further legitimate educational interest in those complaint letters at the time of the request.
In support, KCTCS provided the Attorney General with copies of the Code of Student Conduct and FERPA training materials.
On behalf of his clients, Mr. Herald responded to questions aimed at determining whether Ms. Howard and Ms. Herald have a legitimate educational interest in the letters and, if so, what that interest was. He, too, indicated that his clients were afforded a brief opportunity to review the letters after they learned of the investigation precipitated by the letters. With reference to their interest in the letters, he maintained that the instructors wished to review the letters "to try to determine if they were ineffective in their teaching methods and if they need to make any changes in their methods to meet the academic needs of their future students." Mr. Herald disputed the college's suggestion that his clients intended to file defamation suits against the students, asserting that "they have never even considered such." Their goal, instead, was to "obtain what they believed to be information pertaining to their professional careers." Based on the analysis in Medley v. Board of Education of Shelby County , above, we find that Ms. Howard and Ms. Herald have a legitimate educational interest in the letters and that they were entitled to obtain copies of the letters under the 20 U.S.C. 1232g(6)(1)(A) exception to the general rule of nondisclosure of education records codified at 20 U.S.C. 1232g(b)(1). They do not have a legitimate educational interest in information in the letters that identifies the students, and the college may properly redact that information.
In Medley , a high school teacher requested videotapes of her classroom "'to use to evaluate [her] performance, as a teacher, as well as the management of [her] classroom. '" Medley at 401 citing April 16, 2002, letter from Debbie Medley to Mr. Jim Flynn, Principal, Shelby County Public Schools. The installation of the video cameras in her classroom had been prompted by student complaints that Medley "treated them inappropriately." Id. Relying on FERPA and its state counterpart, 6 the school district denied Medley's request, characterizing the tapes as education records shielded from disclosure by KRS 61.878(1)(k) and (l). 7 The court agreed that the tapes constituted "education records" but concluded that Medley's request "should be judged in light of her position as a teacher. " Id. at 404. The court reasoned:
[T]he 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.
Id. at 405. Given the omission of "any discussion of Medley's educational interest in the videotapes, " and the failure of the superintendent and the board to "fulfill their burden of proof by establishing that Medley's interest was not legitimate," the court remanded the case to the circuit court "for a hearing on the issue of whether Medley had a legitimate educational interest." Id. If the court determined that her interest was legitimate, the court declared, "Medley must be afforded the opportunity to view the videotapes pursuant to the requirements of the Open Records Act. " Id.
In the appeal before us we find substantial evidence to support the legitimacy of Ms. Howard's and Ms. Herald's educational interest in the disputed letters relating to their classroom performance. We begin with the assumption that the letters are education records as defined in FERPA because they are directly related to a student and maintained by an educational agency or institution or by a person acting for the agency or institution. 8 20 U.S.C. 1232g(4)(A)(i) and (ii) and 34 C.F.R. § 99.3(a)(1) and (2). FERPA governs access to educational records by conditioning receipt of federal funding by educational institutions on the existence of institutional policies ensuring parental or eligible student access to education records of the parent's child or the eligible student. It also conditions receipt of federal funding on the existence of institutional policies prohibiting disclosure of educational records to third parties without written consent. 20 U.S.C. 1232g(6)(1)(A) creates an exception for:
[S]chool officials, including teachers within the educational institution . . . 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[.]
Under this exception, Ms. Howard and Ms. Herald are entitled to the records based on their desire to identify deficiencies in their performance and to correct those deficiencies to meet the academic needs of future students. Given the fact that no remedial measures were taken relative to the complaints, access to letters may be the only mechanism by which Ms. Howard and Ms. Herald can hope to improve their performance. No legitimate educational interest would be served by disclosure of information that identifies the students, such as their names, addresses, or personal characteristics, and this information may, consistent with FERPA, be redacted. 9 The difficulties occasionally associated with this process are ameliorated by the fact that none of the letters are handwritten.
We reject the college's position that no educational interest is served by disclosure of the letters to the instructors because "[t]he complaint has been resolved, the faculty were not disciplined or adversely affected in any way as a result of the complaint process, the students are no longer enrolled in classes taught by these faculty, and the matter is closed . . . ." Ms. Howard and Ms. Herald do not express an interest in defending past performance but instead express an interest in improving future performance. Through their attorney, they flatly deny any interest in filing defamation lawsuits against the students and no evidence is presented to support this claim. 10 Finally, we reject the claim that disclosure of redacted copies of the letters will discourage students from filing complaints. As noted, the college has already permitted brief inspection of the letters, and proper redaction of identifying information will protect the privacy interests of the students thereby eliminating their concerns about filing complaints. 11
In Medley , above, the court rejected the school district's argument that the teacher's "efforts to convert the permissive educator access provisions of FERPA and KFERPA into mandatory Open Records Act access . . . raises the prospect of the undermining of the executive authority of the school administration by way of judicial override of such authority." Id. at 406. The court observed:
[A] school superintendent has the power to exercise general supervision over the schools in his district. [Footnote omitted.] However, the outcome of this case does not turn on the superintendent's authority. It is instead a matter of statutory interpretation, a task clearly within the province of this Court. Our elucidation of the statute in question in no way usurps the authority of [the superintendent] or the Shelby County Board of Education. Therefore, the Board's argument is flawed.
Id. Pursuant to KRS 61.880(2), it is within the Attorney General's province to engage in similar statutory interpretation. 12 We do so, here, in a manner that promotes the instructors' legitimate educational interest, as well as the students' privacy interest, without usurping the authority of Hazard Community and Technical College and its administration.
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:
Darrell A. HeraldDoug FraleyJ. Campbell Cantrill III
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