Request By:
Ms. Ann T. Hunsaker
Acting General Counsel
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Acting General Counsel for the Department for Human Resources, you have asked the Office of the Attorney General for an advisory opinion as to whether the Department for Human Resources' workers have authority to examine children at school in regard to child abuse or neglect reports without first obtaining the consent of parents of the child in question. You pointed out for our consideration two relevant subsections of KRS 199.335, the child abuse and neglect reporting statute. Subsection (3) in pertinent part reads:
". . . The bureau may request and shall receive from any agency of the state or any other agency, institution or facility providing services to the child or his family, such cooperation, assistance and information as will enable the bureau to fulfill its responsibilities under this section."
Subsection (8) provides:
"Upon receipt of a report of an abused or neglected child pursuant to this section, the bureau as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action and shall offer protective services toward safeguarding the welfare of the child, preventing further abuse or neglect of the child or any other child under the same care, preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care."
We believe Subsection (9) should also be considered which reads as follows:
"(9) All information obtained by the bureau staff or its delegated representative, as a result of investigation made pursuant to this section shall not be divulged to anyone except:
(a) persons suspected of neglect or abuse, provided that in such cases names of informants may be withheld, unless ordered by the court;
(b) persons within the bureau with a legitimate interest or responsibility related to the case;
(c) other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(d) cases where a court orders release of such information."
You stated that the question you desired to be answered was prompted by the fact some school personnel have suggested that the Family Educational Rights and Privacy Act of 1974, sometimes referred to as the "Buckley Amendment" and the regulations under this federal law (20 U.S.C. 1232g et seq.) limits the rights of department employees to interview children at school concerning abuse and neglect reports. You stated you did not agree with this position and neither do we. We agree with your conclusion and the reason for it as set out below.
The purpose of this federal law was to protect the privacy of parents and students by not permitting carte blanche disclosure of information from a student's school or educational records. There was also an equal concern of establishing directives so that the parents of students under age 18 would have a right to inspect and review their students' school records.
Several definitions from the Buckley Amendment are linchpins to our conclusion reached above. As you noted, the regulations at 45 C.F.R. 99.3, define these key words as follows:
"'Disclosure' means permitting access or the release, transfer, or other communication or education records of the student or the personally identifiable information contained therein, orally or in writing, or by electronic means, or by any other means to any party.
'Personally identifiable' means that the data or information includes (a) the name of a student, the student's parent, or other family member, (b) the address of the student, (c) a personal identifier, such as the student's social security number or student number, (d) a list of personal characteristics which would make the student's identity easily traceable.
'Record' means any information or data recorded in any medium, including, but not limited to: handwriting, print, tapes, film, microfilm, and microfiche."
We are in total agreement with you that the thrust of the Buckley Amendment is limited to "educational records." The examination of children at school in regard to child abuse or neglect reports is not a providing of access to education records which is guarded by the Buckley Amendment.
We further believe, as do you, that even if the Department's workers sought or needed access to a child's records who was to be examined for known or suspected child abuse or neglect, the regulations to the Buckley Amendment at 45 C.F.R. 99.36, would permit examination of the record under the circumstances delineated. This regulation section provides:
"(a) An educational agency or institution may disclose personally identifiable information from the education records of a student to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.
(b) The factors to be taken into account in determining whether personally identifiable information from the education records of a student may be disclosed under this section shall include the following:
(1) The seriousness of the threat to the health or safety of the student or other individuals;
(2) The need for the information to meet the emergency;
(3) Whether the parties to whom the information is disclosed are in a position to deal with the emergency; and
(4) The extent to which the time is of the essence in dealing with the emergency.
(c) Paragraph (a) of this section shall be strictly construed."
As you stated, this wording does indicate an exception in the case of emergencies, certainly health and safety emergencies. We believe abuse and neglect complaints would come under this provision for health and safety emergencies. We agree with you that it may be very important that the appropriate Department's employees examine the child while at school so as to obtain evidence of alleged abuse or neglect while such evidence is still readily available.
A couple of additional points regarding this matter need be mentioned. Although it will be unlikely that the child's educational records will need be examined in the investigation of a known or suspected abuse or a neglect case, if the records are disclosed to a Department for Human Resources' employee investigating the case, the educational agency, (the school) is required to maintain a record of who has been given access to the records of the child and the legitimate interests of those persons. See 45 C.F.R. 99.32.
Lastly, we perceive that while there do not exist any insurmountable problems with certain employees of the Department for Human Resources examining a child regarding abuse or neglect, there may be presented some practical ones. We have previously looked at some practical problems involving law enforcement officers' duties concerning the taking of abused or neglected children into protective custody during school hours. See OAG 78-716, copy attached. Likewise, in the examination situation discussed above, we believe the school personnel and employees of the Department for Human Resources must work closely together to assure as nearly as possible a child's examination be accomplished without unduly alarming the child or embarrassing the child or disturbing the child's classmates. We are confident these goals may be attained to the satisfaction of the school personnel and Department for Human Resources' employees. This matter would be a good one to be considered by each local board of education for the development of appropriate school policy.