Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Jefferson County Public Schools ("JCPS") properly denied attorney Todd Greenwell's April 22 and 29, 2016, requests for a copy of "[a]ny school bus video for a crash which occurred November 5, 2015 on Brownsboro Road at approximately 16:18 in Louisville, Jefferson County." Mr. Greenwell's initial request was denied by Deputy Communications Director Jennifer Brislin on April 28, 2016, as the video was "an education record which contains personally identifiable information of the students recorded thereon" under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, as incorporated into the Open Records Act by KRS 61.878(1)(k), and the Kentucky Family Education Rights and Privacy Act ("KFERPA"), KRS 160.700 et seq. Ms. Brislin stated that "FERPA and KFERPA prohibit the School District from disclosing education records to you without the prior written consent of the parents of the students, which has not been provided."
With his second request, Mr. Greenwell provided an authorization signed by the guardian of one of the students on the bus, whom he represents in the matter of injuries sustained in the crash. Ms. Brislin replied on May 4, 2016:
[T]here were 33 students on the bus in question at the time of the incident. It is not feasible for the District to redact or otherwise blur the faces of all students other than your client, and we have not been provided written consent from parents or guardians of the other 32 students allowing release of their education records. As such, we are unable to produce this record for you.
Mr. Greenwell initiated an appeal on August 8, 2016. A response was submitted by Open Records Coordinator Amanda Herzog on August 17, 2016.
KRS 61.878(1)(k) and (1)(l) exempt from public disclosure, respectively, "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation" and "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The relevant provision of FERPA, 20 U.S.C. § 1232g(b)(1), provides:
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 (1) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to [specified individuals under specified conditions listed at (b)(1)(A)-(J)].
Both FERPA and KFERPA preclude the disclosure to third parties of education records containing personally identifiable student information without prior parental written consent. School bus video footage is an education record containing such information. 99-ORD-217. Furthermore, "[w]e assume that redaction would be made difficult, if not impossible, by the number of students on the bus, the constant movement of the students, and the likelihood that some students could be identified by height, weight, hair color, or manner of dress." 07-ORD-005.
Mr. Greenwell argues that because the video footage contains evidence relating to a vehicular accident, the public interest should favor disclosure. This contention was rejected in 07-ORD-037:
While there is an unquestionable public interest in monitoring school bus safety that would arguably be promoted by disclosure of the videotape and that would almost certainly outweigh any articulable privacy interests asserted by the District, the Family Educational Rights and Privacy Act does not mandate a "comparative weighing of the antagonistic interests" analysis but instead establishes an absolute bar to disclosure of education records absent parental consent.
Furthermore, the fact that Mr. Greenwell has obtained consent from the guardian of one student does not vitiate the FERPA protections of the other students:
Because the record apparently contains information on more than one student, and that information is inextricably intermingled and therefore nonsegregable, we conclude that the school system cannot disclose the videotape in such a way as to meaningfully honor the rights of [Mr. Greenwell's client] to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the tape to third parties.
99-ORD-217.
Mr. Greenwell also argues that the video must be disclosed because a "JCPS agent" has made a statement that "[t]he video shows that the bus did not rock as a result of" the collision. As JCPS correctly notes, "[d]escription of a minor aspect of the video, which does not provide any student information, is substantially different from release of the full Video which contains student identifying information regarding 33 students that cannot feasibly be redacted." Nor does Mr. Greenwell point out any exception to FERPA that would apply in the circumstances he describes. In short, this appeal presents no basis for departing from our prior decisions finding school bus video exempt under FERPA and KFERPA by operation of KRS 61.878(1)(k) and (l). Accordingly, we find no violation of the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.