Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herric, 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 Grayson County Board of Education properly denied attorney Luke Morgan's June 26, 2017, request for a copy of "a video recording made on the final day of class at Grayson County High School, on or about May 22 or May 23, 2017." Specifically, Mr. Morgan's request was for a recording of the school hallway showing a concrete block in the wall which was decorated by his client, a high school senior, as part of a school tradition, and within 36 hours thereafter was defaced by another student. The request was denied by Superintendent Douglas Robinson on June 28, 2017, who stated: "[V]ideo tapes used to record student conduct are 'education records' within the meaning of FERPA and KFERPA. Accordingly, you are prohibited from viewing these video tapes since the recording would necessarily reveal the identities of students other than your client."
Mr. Morgan initiated this appeal on July 6, 2017, arguing in essence that if an adult was present when the block was defaced, the identity of that adult is not an "education record." He further argues that the Board failed to articulate the applicable exception to the Open Records Act and explain its application. Additionally, he suggests that the Board may not have reviewed the video footage to ascertain its content.
On July 13, 2017, attorney David B. Vickery responded to this appeal on behalf of the Board, reciting as follows:
As a matter of background, the interior hallways of Grayson County High School are constructed of concrete block. These blocks are approximately 8" x 14" in size and the Grayson County High School allows a graduating High School Senior the right to decorate one of these concrete blocks with paintings, quotations or other decorative items. After graduation, the hallway is repainted. Mr. Morgan's client decorated one of these concrete blocks with the number "2017" and she made the zero into a baseball. Another student came through with a paint brush and drew a line through the baseball in red paint. The video camera making the recordings requested by Mr. Morgan was a black and white camera that records all of the students going up and down the hallway and working on their particular concrete blocks and it was impossible from looking at the video to determine who, in fact, had defaced this concrete block but the Principal, upon interrogating several of the students who were in the area, was able to find the perpetrator who did admit to the defacing of the concrete block and the offending student was appropriately disciplined by the Principal.
Mr. Vickery then reiterates the Board's position that the video footage is an education record protected by FERPA and KFERPA, as its disclosure would reveal the identities of students other than Mr. Morgan's client.
The Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, is incorporated into the Open Records Act by KRS 61.878(1)(k), which exempts from public disclosure "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation." The Kentucky Family Education Rights and Privacy Act ("KFERPA"), KRS 160.700 et seq. , analogous to the federal act, is incorporated by KRS 61.878(1)(l), which exempts "[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 as follows:
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. Video footage of students is an education record containing such information.
Medley v. Bd. of Education of Shelby County, 168 S.W.3d 398, 404 (Ky. App. 2004); 99-ORD-217.
The applicability of FERPA to particular records, video or otherwise, must be determined on a case-by-case basis. Similarly, our need to review allegedly protected records in camera may depend upon the nature of the request, the content of the records themselves, and the adequacy of the information in the appeal records. Compare 12-ORD-034 (Attorney General conducted in camera review of school bus video to determine FERPA applicability) with 11-ORD-106 ( in camera review not deemed necessary for similar record). We have not found such review necessary in this appeal. The request seeks a video recording of a school's interior hallway on the last day of class, which on its face indicates the presence of students as part of the content of the recording. Further, on appeal, the Board has provided a detailed description of what was represented in the footage, including the fact that there were myriad students visible, coming and going in the hallway. Given this information, we can conclude "that redaction would be made difficult, if not impossible, by the number of students [present], 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.
In 99-ORD-217, we affirmed the nondisclosure of video footage of an altercation between students on a bus on FERPA and KFERPA grounds due to the presence of multiple 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 [one student] to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the tape to third parties.
Our analysis in 99-ORD-217 was unaffected by the fact that a bus driver was present along with the students. Similarly, we find no merit in the appellant's argument that the footage should be disclosed to the extent that an adult may have been nearby during the student misconduct. 1 While the appellant's primary interest might be in the behavior of any adults who were present, any such interest makes no difference to the FERPA analysis. "[T]he 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." 07-ORD-037; see also 16-ORD-226.
The appellant cites no exception to FERPA that would apply in the circumstances of this case. In short, this appeal presents no basis for departing from our prior decisions finding video footage of students exempt under FERPA and KFERPA by operation of KRS 61.878(1)(k) and (l). Accordingly, we find no substantive violation of the Open Records Act. Procedurally speaking, however, KRS 61.880(1) requires a public agency denying access to a record to state the applicable exception and briefly explain how it applies. The Board improperly failed to cite KRS 61.878(1)(k) and (l) in its response to Mr. Morgan.
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.
Footnotes
Footnotes
1 See also 15-ORD-153 (video of altercation at school between student and police officer was protected by FERPA); but see 11-ORD-106 (video of altercation on school bus between parent and bus driver, with students in background, was not shielded by FERPA because no student conduct was involved).