Request By:
Mr. L. Larry Harper
Superintendent
McCracken County Public Schools
260 Bleich Road
Paducah, Kentucky 42003-5598
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Bonnie Young has appealed to the Attorney General pursuant to KRS 61.880 your denial of her March 5, 1991, request for a copy of the internal investigative report prepared by employees of the McCracken County Public Schools following an incident involving her son at Lone Oak Middle School.
You denied Ms. Young's request in a letter dated March 8, 1991. Relying on KRS 61.878(1) (a), (g), (h), and (j), you explained that the report "was an investigation of the facts that led to the Principal's decision to isolate . . . [Ms. Young's] son and to determine if disciplinary action should be taken against the Principal and was not an investigation of . . . [her son's] . . . isolation (which of necessity did contain information about . . . [his] placement) ." In addition, you noted that the report "is intra-office memoranda setting forth observations of school personnel and does not represent a final decision of the Superintendent of the McCracken County School District." Finally, you observed that KRS 161.790(5) and (9) prohibit disclosure of "disciplinary personnel decisions."
In her letter of appeal to this Office, Ms. Young argues that the report "dealt directly with the facts and circumstances surrounding the placement of . . . [her] son . . . in a janitorial closet at Lone Oak Middle School." It is her position that she should have access to any records pertaining to her son since the information contained in those records "is vital in determining future educational decisions."
Ms. Young asks that we review your denial of her request to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you improperly denied Ms. Young's request.
OPINION OF THE ATTORNEY GENERAL
This appeal arises out of an incident which occurred in October 1990, involving Ms. Young's son, who was enrolled at Lone Oak Middle School and assigned to a BDED (Behavior Disorder/Emotional Disorder) classroom. After repeated infractions, Ms. Young's son was disciplined for disruptive conduct and placed in a supply room containing cleaning chemicals and maintenance items for an extended period of time. Following this incident, an investigation was conducted, culminating in a written report which was submitted to you in November, 1990. It is that report which is the subject of the instant appeal.
It is the opinion of this Office that the exemptions you cite notwithstanding, the McCracken County Public School system is statutorily required to release the requested records to Ms. Young. The Family Educational Rights and Privacy Act of 1974, commonly known as FERPA, or the Buckley Amendment, 20 U.S.C. § 1232g, regulates access to "education records." Although the Act is generally viewed as prohibitory in nature, precluding the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent, it is also aimed at assuring parents of students, and students themselves if they are over eighteen years of age, access to their education records. Thus, 20 U.S.C. § 1232g(a)(1)(A) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of the students who are or have been in attendance at the school of such agency or at such institution, . . ., the right to inspect and review the education records of their children.
Parental access is deemed essential for two reasons. Education records may contain information needed by a parent to aid in planning his child's future. In addition, parental access is necessary to facilitate the correction of erroneous and potentially harmful material pertaining to a child.
"Education records" are sweepingly defined to include:
[T]hose 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.
20 U.S.C. § 1232g(a)(4)(A). A number of statutory exceptions have been carved out of this definition, to wit: (1) Private notes and memoranda of instructional, supervisory, and administrative personnel that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record, such as a grade book; (2) Records of a law enforcement unit of an educational agency or institution if they are maintained separately from education records, maintained solely for law enforcement purposes, and disclosed only to law enforcement official of the same jurisdiction; (3) Records relating to an individual who is employed by the educational agency unless the employee is also a student and is employed as a result of his or her status as a student; and (4) Medical records of students eighteen years of age and order. 20 U.S.C. § 1232g(a)(4)(B)(i)-(iv). It is widely recognized that the term "education records" was intended to be broadly construed, and that the exceptions cited above must be narrowly construed, since the value of the right of access and right of privacy "depreciates with every item that is excluded from the definition of 'education record.'" Note, "Federal Genesis of Comprehensive Protection of Student Educational Rights: The Family Educational Rights and Privacy Act of 1974," 61 Iowa L.Rev. 74, 83 (1975).
20 U.S.C. § 1232g(a)(4)(A) requires that an education record directly relate to a student. This requirement is satisfied if a record is "associated in any manner with an identifiable student," note, supra, at 84, regardless of whether the individual is identified by name. "The key is whether the record is traceable to a student although the student's name is not recorded." J.Rapp, Education Law, at § 13.04[7][b][ii](1991). Unfortunately, there is a paucity of legal authority expressly construing the scope of the term "education records." An Arkansas court has recognized that records maintained by an intercollegiate conference which relate to the amount of money allocated to student athletes during a school year are not "education records."
Arkansas Gazette Co. v. Southern State College, Ark., 620 S.W.2d 258 (1981); cert. den. 102 S. Ct. 1416, 455 U.S. 931, 71 L. Ed. 2d 640. Nor are records specifying the reasons for teacher certificate revocations, since the statute is intended to protect student, and not teacher, records.
Brouillet v. Cowles Publishing Co., Wash., 791 P.2d 526 (1990). The language of the statute itself, strongly suggests that it embraces a wide range of information relating to students.
Resolution of this appeal thus turns on whether the investigative report prepared by employees of the McCracken County Public Schools is an "education record." Pursuant to KRS 61.880(2), we have examined the report. It is immediately apparent that it does not come within any of the cited exceptions to FERPA insofar as it does not consist of private notes, law enforcement records, employment records or medical records. Moreover, although it does not identify Ms. Young's son by name, it "contains information directly related to him" and is "maintained by an educational agency," the McCracken County Public Schools. The report documents, in considerable detail, the events leading up to the decision to isolate him, as well as his conduct in the classroom and interaction with faculty and students. It is apparent that release of the information would serve the purpose of the Act by enabling Ms. Young to make informed choices relative to her son's education. We therefore conclude that the report is an educational record subject to mandatory release under authority of 20 U.S.C. § 1232g(a)(1)(A). In view of the fact that the federal act compels disclosure, we need not address the question of whether any of the exemptions to the Open Records Acts cited in your letter of denial authorize the withholding of the report.
We note, in passing, that neither the federal, nor the state, act require the McCracken County Public Schools to provide Ms. Young with a copy of the report prior to inspection. FERPA permits an agency to decline to provide a copy except where its refusal will effectively prevent a parent from exercising his or her right to inspect and review, as, for example, where the location or nature of the records prevent effective inspection. 34 C.F.R. § 99.11(b). Similarly, the Open Records Act provides for an initial right of inspection. KRS 61.872. This Office has consistently held that the right to copies is therefore ancillary to the right of inspection. OAG 76-375; OAG 82-629; OAG 83-24; OAG 83-204; OAG 86-24; OAG 88-60; OAG 89-53; OAG 90-31. Accordingly, the McCracken County Public School System is not obligated to provide Ms. Young with a copy of the report prior to inspection.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Bonnie Young. Ms. Young and the McCracken County Public Schools have a right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).