24-ORD-241
November 18, 2024
In re: Alan S. Rubin/Jefferson County Public Schools
Summary: Jefferson County Public Schools (“JCPS”) did not violate the
Open Records Act (“the Act”) when it denied a request for a copy of school
surveillance video and an incident report under KRS 61.878(1)(k) and
20 U.S.C. § 1232g.
Open Records Decision
Alan S. Rubin (“Appellant”) submitted a request for records to JCPS for three
categories of records related to an incident that occurred on October 11, 2023. First,
the Appellant requested the identity of certain employees involved in the incident.
Second, the Appellant requested an incident report related to the incident. Third, the
Appellant requested a copy of any video recordings that JCPS possesses related to
the incident. JCPS denied the Appellant’s request, citing KRS 61.878(1)(k),
KyFERPA, and FERPA. This appeal followed.1
The Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g,
is incorporated into the Act under KRS 61.878(1)(k). Under 20 U.S.C. § 1232g(b)(1),
“[n]o 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 . . .) of students without the written consent of their
parents to any individual, agency, or organization,” excepting certain individuals not
relevant here. Thus, FERPA precludes the disclosure of education records containing
1
On appeal, JCPS states it provided the identity of all the employees related to the incident that is
the subject of this appeal to the Appellant. Accordingly, any issues related to these records are now
moot. See 40 KAR 1:030 § 6 (“If the requested documents are made available to the complaining party
after a complaint is made, the Attorney General shall decline to issue a decision in the matter.”).personally identifiable student information to third parties without prior parental
written consent.2
FERPA
regulates
access
to
“education
records,”
which
20 U.S.C. § 1232g(a)(4)(A) defines 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.” “[C]ourts have generally defined education records as
documents with information about academic performance, financial aid, or
disciplinary matters.” Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 57 (Ky. 2021)
(emphasis added). Video footage of students is an education record containing such
information. See, e.g., Medley v. Bd. of Educ. of Shelby Cnty., 168 S.W.3d 398, 404
(Ky. App. 2004); 24-ORD-239; 22-ORD-073; 99-ORD-217 (finding FERPA prevents
even the parent of a student recorded on video from inspecting such recording when
the video also captured other students).
Here, the Appellant requested an incident report and video footage related to
an incident involving a student at a JCPS school. JCPS explains that the incident
report and video footage contain information that would make the student
identifiable. Moreover, JCPS asserts that the student’s identity is known to the
Appellant. Under 34 C.F.R. § 99.3, “personally identifiable information” includes
“information requested by a person who the educational agency or institution
reasonably believes knows the identity of the student to whom the education record
relates.” Thus, even if JCPS were to redact the student’s identifying information from
the records, it would not alter the status of the video as an education record
containing personally identifiable information of the students under FERPA. See,
e.g., 24-ORD-196; 22-ORD-073. Accordingly, JCPS did not violate the Act when it
denied the Appellant’s access to records in their entirety that were prohibited from
disclosure under FERPA.3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
2
JCPS states that it has informed the Appellant the records will be made available if he provides
the “appropriate release from the student’s parent or guardian,” but the Appellant has not provided
such materials.
3
Because FERPA is dispositive of the issues on appeal, it is not necessary to address JCPS’s
alternative argument under KyFERPA.any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#418
Distributed to:
Alan S. Rubin
Marty A. Pollio
Diane Porter
C. Tyson Gorman