Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pike County Board of Education violated the Open Records Act in its disposition of Kathleen Moore's May 21, 2015, request for records relating to her. For the reasons that follow, we find that the Board failed to make a timely response to Ms. Moore's request.
Ms. Moore's May 21 request, issued by her attorney H. Truman Chafin to Superintendent David Lester, asked for two things. First, the letter requested "the outcome of the investigation that were completed on her behalf." In the second paragraph, Mr. Chafin quoted the language of KRS 61.884 1 and requested "any and all relevant documentation which concerns Ms. Kathleen Moore. " In a response dated June 5, 2015, "Reed Adkins, Personnel" and Principal Kevin Justice informed Ms. Moore of the outcome of the investigation, but they neither provided her any documents nor made any mention of her request for records. Ms. Moore initiated an appeal on August 28, 2015.
On September 9, 2015, attorney Neal Smith responded to the appeal on behalf of the Pike County Board of Education. He states that "[t]he District did not understand the last sentence of paragraph two to be an Open Records request." Mr. Smith further states that "all documentation which could conceivably be considered relevant" has now been provided to Ms. Moore's attorney, with the sole redaction of "[s]tudents' names and identities."
KRS 61.880(1) requires a public agency to make a disposition of a request for public records within three days, excluding weekends and legal holidays. Evidently through an inattentive reading of Mr. Chafin's letter, the Board failed to make any response to Ms. Moore's open records request. As we find no ambiguity in the May 21 letter, we necessarily find that the Pike County Board of Education failed to comply with the Open Records Act prior to this appeal.
As for the Board's ultimate disposition of the request, we find no substantive error in the redactions. The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g et seq ., and the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700 et seq ., prohibit disclosure of personally identifiable student information from records maintained by educational institutions without the written consent of the student or parent. Having reviewed the redactions, we find that they do not go beyond removal of the names and identities of pupils, and therefore are justified under KRS 61.878(1)(k) and (1) as "information the disclosure of which is prohibited" by federal and state law. To comply with KRS 61.880(1), however, FERPA and those subsections of KRS 61.878 should have been cited explicitly, with "a brief explanation of how the exception applies" to the material withheld.
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 Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878."