Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Donald Story initiated this appeal challenging the partial denial by the Clinton County Board of Education of his December 29, 2015 request for "any e-mails or faxes about [D.K.] and [E.B.] before and after Nov-20-2014 about the fight. " 1 (Original emphasis.) In a timely written response, legal counsel for the Board advised Mr. Story that he was enclosing four pages of responsive documents with redactions made "to protect the confidentiality of the name of another student under the Family Education[al] Rights and Privacy Act [FERPA], 20 U.S.C. § 1232, and based upon reference relating to a personnel matter of a Clinton County Schools employee. See KRS 61.878(1)(a), (1)(k), (l); also [ Cape ] Publications v. City of Louisville, 191 S.W.3d 10 (Ky. 2006)." 2
By letter dated March 20, 2015 Mr. Story initiated this appeal, maintaining that information deleted from the document in dispute could not be protected "when clearly this is about my son and another student or it would not have been included in my open records request. I think these notes are to the school board from Charlotte Bernard," the Superintendent. Mr. Story acknowledged that redaction of the other student's name was appropriate under FERPA "but not almost the whole paragraph." Upon receiving notification of Mr. Story's appeal from this office, counsel reiterated that "information regarding another student constitutes personally identifiable information and is therefore protected from disclosure by state and federal statute," namely FERPA and the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et. seq. Because Mr. Story has acknowledged that redaction of the other student's name was justified, further discussion of this question is unwarranted.
With regard to information "relating to a personnel matter of an employee of the Clinton County Schools," counsel noted that a copy of the document attached to Mr. Story's appeal reflects the redaction of two (2) sentences. "Both redacted sentences relate to the manner in which a school employee performed his/her duties," counsel explained, "and do not contain information regarding the underlying student fight involving Mr. Story's son." Again referencing Cape Publications , the Board maintained that "documentation concerning a supervisor's assessment of the conduct or performance of 'an ordinary employee' is not of such significant public interest that it should be subject to disclosure. " The redacted information relates to an "ordinary employee of the Clinton County Schools," counsel observed, "and reflects a supervisor's assessment of his/her job performance vis a vis the student conflict." Accordingly, the redacted sentences were properly withheld in the agency's view. Having reviewed the document in dispute under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office must respectfully disagree as Mr. Story "possesses an absolute right to inspect any and all educational records, including the requested communications, relating to his [child] by virtue of 20 U.S.C. § 1232g and KRS 160.700." 10-ORD-069, 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, 3 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), 4 FERPA regulates access to "education records" like those in dispute; § 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." 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, 40 S.W.3d 865 (Ky. 2001); 99-ORD-217, inter alia. FERPA specifically precludes the disclosure of personally identifiable student information to third parties in the absence of prior written consent from a parent or eligible student. More significantly for purposes of this appeal, however, 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. 5 See 10-ORD-069; 12-ORD-112.
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). 6 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), the term is expansively construed to include all information, regardless of its form, which satisfies the two-part test described above. Although 20 U.S.C. § 1232g(a)(4)(A) requires that an "education record" directly relate to a student, "[t]his requirement is satisfied if a record is 'associated in any manner with an identifiable student, . . . regardless of whether the individual is identified by name." OAG 91-177, p. 2 (citation omitted). 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); 00-ORD-213; 10-ORD-150. Accordingly, 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. Ohio, 2000); 00-ORD-213; 10-ORD-150.
In 10-ORD-069 this office was asked to determine whether the Caldwell County School District violated the Open Records Act in partially denying a request by a parent for education records pertaining to his daughter, records pertaining to a District employee, and records pertaining to District policies. The Attorney General concluded that the District violated the Act in declining to provide the requester with access to "all documents, emails, notes, correspondence and memoranda involving [his daughter] , and all communication and correspondence in whatever tangible medium between [eight named District employees] involving [his daughter] ." On appeal the agency cited "KRS 61.878(1)(a)(i)" in denying his request as to all communications relating to his daughter. Noting that such records might enjoy protection from the public generally under these statutory exceptions, and certainly would under FERPA and KFERPA, this office found that "it is these statutes which guarantee [the parent requester's] right to inspect his [child's] educational records." 10-ORD-069, p. 2 (original emphasis). The reasoning upon which that decision is based applies with equal force on the facts presented here.
In rejecting the agency's position, this office engaged in the following dispositive analysis:
Under both the federal and state law, the term is intended to be inclusive. FERPA and KFERPA preclude the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. More importantly for purposes of our analysis, these statutes ensure the right of a parent, or a student who has reached the age of eighteen, to inspect the parent's child's or the eligible student's own education records. Communications concerning Mr. [Story's child], in whatever form, clearly constitute "education records" because they directly relate to his [child] and are maintained by an educational agency or institution. As a practical and legal matter, compliance with FERPA is mandatory inasmuch as educational institutions that fail to comply risk forfeiture of their federal funding in derogation of their educational mission.
20 U.S.C. § 1232g(4)(B) excludes from the definition of "educational record":
The [Board] advances no argument that the requested communications between and among District administrators and employees that relate to [requester's child] fall within one or more of these exclusions. Assuming, for the sake of argument, that the communications constituted "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereof," within the meaning of 20 U.S.C. § 1232g(4)(B)(i), they are not "sole[ly] possess[ed by] the maker thereof." Instead, they are, by their nature, communications exchanged and shared by the named administrators or employees. Absent proof to the contrary, we assume that the remaining exclusions are facially inapplicable.
Id., pp. 3-4.
This office is prohibited from disclosing the content of the redacted material in dispute by KRS 61.880(2)(c), and further limited in describing the remainder of the subject "education record" under FERPA and KFERPA. Independent review of the document refutes the agency's position that said information does not relate "to the underlying fight involving Mr. Story's son." The redacted sentences are sufficiently associated with an identifiable student when viewed in context and the lack of a specific reference to him does not alter that conclusion. As in 10-ORD-069, the parent requester "possesses an absolute right to inspect any and all educational records, including the requested communications, relating to his [child] by virtue of 20 U.S.C. § 1232g and KRS 160.700." Id., p. 4. The agency's refusal to disclose a complete version of the education record in dispute to him violated the Open Records Act. As noted, these laws prohibit disclosure of communications relating to his child exchanged by school administrators and employees, or any other education records relating to his child, without his consent. Id.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Both students are referred to by their initials in deference to their privacy interests. See 09-ORD-151.
2 Cape Publications (involving a denial of access to performance evaluations of employees of the Louisville and Jefferson County Parks Department who had been accused of criminal wrongdoing in the course of their duties) is now the controlling precedent on the issue of access to public employee performance evaluations. Citing the "case-by-case analysis required by the outstanding law on the Open Records Act," the Court in Cape Publications concluded that "[a] bright-line rule completely permitting or completely excluding from disclosure public employees' performance evaluations is at odds with existing law[.]" Id. at 14. The redacted information was not contained in a public employee performance evaluation and this case is therefore not controlling. Given our holding relative to FERPA, additional discussion is unwarranted.
3 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.
4 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."
5 Likewise, KRS 160.715(1) provides:
Parents of students or eligible students attending public institutions or who have been in attendance shall have the right to inspect and review student education records within a reasonable time of making a request to inspect.
KRS 160.705(1), on the other hand, provides:
Education records of students in the public educational institutions in this state are deemed confidential and shall not be disclosed, or the contents released, except under the circumstances described in KRS 160.720.
6 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.