25-ORD-036
February 6, 2025
In re: Tracy Frye/Greenup County Board of Education
Summary: The Greenup County Board of Education (“the Board”)
violated the Open Records Act (“the Act”) when it failed to respond to a
request within five business days of receiving it and when it failed to
respond to all portions of the Appellant’s request. The Board failed to
carry its burden to show the withheld records were education records
exempt under FERPA or KFERPA. The Board violated the Act by failing
to provide the name and location of the official records custodian of the
agency in actual possession of some requested records. And the Board
did not violate the Act when it did not provide records it does not possess.
Open Records Decision
On December 17 and 18, 2024, Tracy Frye (“Appellant”), on behalf of her clients,
submitted two multipart requests seeking a variety of records related to the children1
of her clients.2 In a response dated January 9, 2025, the Board stated that it would
not provide videos of a classroom at McKell Elementary School. Further, because the
Appellant had filed a lawsuit against the Board in which she had requested the tapes
as part of a request for production, the Board claimed her request “is now governed
by the Kentucky Rules of Civil Procedure.” This appeal followed.
1
Both requests sought records related to a specific child and were submitted by the Appellant on
behalf of that child’s parent or parents.
2
The requests sought, in relevant part, “school-issued telephone numbers of” four individuals;
“written documents, emails or text messages” sent “to or from any employee, agent, or administrator”
of the Greenup County Schools or sent to “any third party, the Cabinet for Health and Family Services,
or police/law enforcement” related to the specified child; “all written documents, photographs, video
footage, and audio recordings” related to the specified child; “written documents, communications,
photographs, video recordings, audio recordings, investigative reports, termination notices, and legal
proceedings with regard to the employment of” four Greenup County School employees; and “all
records regarding state and federal funding received by McKell Elementary for children with
disabilities.”Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] days . . . after the receipt of any such request
whether to comply with the request and shall notify in writing the person making the
request, within the five (5) day period, of its decision.” KRS 61.880(1) (emphasis
added). If an agency denies in whole or in part the inspection of any record, its
response must include “a statement of the specific exception authorizing the
withholding of the record and a brief explanation of how the exception applies to the
record withheld.” Id. A public agency cannot simply ignore portions of a request. See,
e.g., 21-ORD-090.
The Board’s original denial was submitted on January 9, 2025, more than five
business days following the submission of both Appellant’s requests. The Board does
not claim that it timely responded in writing to the requests.3 Moreover, the Board’s
denial only addresses the requested videos and ignores the other portions of the
Appellant’s requests. Thus, the Board violated the Act when it failed to timely
respond to the requests and when its original denial only addressed one requested
record and ignored others.
On appeal, the Board abandons its original basis for denial. Instead, it has
provided a portion of the requested records and withheld others.4 This appeal is now
moot as to the records produced by the Board. See 40 KAR 1:030 § 6. But the Office
will address the Board’s new grounds for denying the inspection of records still not
produced.
To start, the Board asserts that it does not possess “school-issued telephone
numbers” for the identified individuals and that it possesses no records regarding
“federal funding received by McKell elementary for children with disabilities.” Once
a public agency states affirmatively that a record does not exist, the burden shifts to
the requester to present a prima facie case that the requested record does exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the
requester is able to make a prima facie case that the records do or should exist, then
the public agency “may also be called upon to prove that its search was adequate.”
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing
Bowling, 172 S.W.3d at 341). Here, Appellant has not made a prima facie case that
3
Instead, the denial references a verbal discussion regarding production of the videos, in the first
week of January, subject to a non-disclosure agreement.
4
Contemporaneously with its response to this appeal, the Board submitted complete responses to
the Appellant’s requests on January 17, 2025.these records exist. Accordingly, the Board did not violate the Act when it could not
provide these records.
Next, the Board relies on the Family Educational Rights and Privacy Act and
Kentucky’s equivalent statute to withhold “written documents, emails or text
messages” sent “to or from any employee, agent, or administrator” of the Greenup
County Schools or sent to “any third party, the Cabinet for Health and Family
Services, or police/law enforcement” related to the specified child and “all written
documents, photographs, video footage, and audio recordings” related to the specified
child.
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, other than to” specified individuals under
conditions not relevant here (emphasis added). Likewise, under the Kentucky Family
Education Rights and Privacy Act (“KFERPA”), KRS 160.700 to 160.730, “[e]ducation
records of students in the public educational institution in [Kentucky] are deemed
confidential and shall not be disclosed, or the contents released, except under the
circumstances described in KRS 160.720.” KRS 160.705(1). Under KRS 160.720,
“[p]arents . . . may consent to the release of written documents by completing and
signing forms devised by the educational institution identifying the records to be
released, the date of the release, the party to whom the release is granted, and the
purpose of the request.” KRS 160.720(1).
In its response, the Board states only that the records are education records
that are exempt under FERPA and KFERPA. However, the Appellant states she is
an attorney representing the parents of the students identified in the respective
requests. Both FERPA and KFERPA allow parents to authorize the release of their
child’s education records. But the Board does not claim that the Appellant lacks the
written consent of her clients, the parents of the identified students. Under
KRS 61.880(2)(c), “[t]he burden of proof in sustaining the action shall rest with the
agency.” The Board has not explained why it is withholding educations records in
response to a request from the attorney of the parents of the students whose
education records are at issue. Thus, the Board has failed to adequately explain why
these records were properly withheld under FERPA or KFERPA.Finally, in response to the request for “written documents, communications,
photographs, video recordings, audio recordings, investigative reports, termination
notices, and legal proceedings with regard to the employment of” four Greenup
County School employees, the Board asserts that responsive law enforcement records
are not in its possession, but are, instead, in possession of the Greenup County
Schools Division of Law Enforcement, which it claims5 is a separate agency from the
Board.6 Under KRS 61.872(4), “[i]f the person to whom the application is directed
does not have custody or control of the public record requested, that person shall
notify the applicant and shall furnish the name and location of the official custodian
of the agency’s public records.” Here, however, the Board’s January 17, 2025,
response to the Appellant, which the Board provided to the Office as part of its
response on appeal, does not inform the Appellant that it is not the agency in
possession of the requested law enforcement records or provide her with the contact
information for the law enforcement agency’s official records custodian.7 Accordingly,
the Board violated the Act when it did not inform the Appellant that her request for
law enforcement records was sent to the wrong agency, or otherwise provide her with
the contact information for the correct agency’s official records custodian.
5
It is debatable whether the Board’s assertion is true. The Board is the public agency that runs
Greenup County Schools. See KRS 160.290(1) (“Each board of education shall have general control and
management of the public schools in its district. . . .”). Further, it is the responsibility of the Board to
provide school resource officers (SROs) for each of its schools under KRS 158.4414, and the Board is
allowed to establish its own police department under KRS 158.471. The Board admits that “it employs
its own police department, [the] Greenup County Schools Division of Law Enforcement.” Thus, to the
extent that the Board has established its own police department, the Board would have control and
possession of that department’s records. But because the Board did not comply with KRS 61.872(4)
here, it is not necessary for the Office to determine whether the Board’s Division of Law Enforcement
is a separate agency from the Board itself.
6
The Board states that it had produced records that can be found in the individuals’ personnel files.
Therefore, any dispute regarding those records is moot. See 40 KAR 1:030 § 6.
7
Alternatively, the Board stated that the requested records are exempt under KRS 61.878(1)(h).
Although the Board claims not to be the agency in possession of these records, to the extent it does
possess the records, the Board failed to properly invoke KRS 61.878(1)(h) to withhold them.
KRS 61.878(1)(h) exempts “[r]ecords of law enforcement agencies or agencies involved in
administrative adjudication that were compiled in the process of detecting and investigating statutory
or regulatory violations if the disclosure of the information would harm the agency by revealing the
identity of informants not otherwise known or by premature release of information to be used in a
prospective law enforcement action or administrative adjudication.” KRS 61.878(1)(h). The Supreme
Court of Kentucky has held that when a public agency relies on KRS 61.878(1)(h) to deny inspection,
it must “articulate a factual basis for applying it, only, that is, when, because of the record’s content,
its release poses a concrete risk of harm to the agency in the prospective action.” City of Fort Thomas
v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The Board states only that “[t]here are ongoing
criminal investigations into the listed individuals.” But the Board did not identify any harm posed by
release of the records. Thus, to the extent the Board possesses these records, its response was
insufficiently specific to invoke KRS 61.878(1)(h).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
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#016
Distributed to:
Tracy D. Frye
Traysea Moresea
James Lyon, Jr.