Request By:
IN RE: Alan Underhill/Kentucky River Foothills Development Council, Inc.
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky River Foothills Development Council, Inc.'s (Council's) denial of Mr. Alan Underhill's October 26, 1992, request to inspect a record in the council's custody. That record is identified as the "application for enrollment for [a named child]." Mr. Underhill indicates that he is only interested in reviewing that portion of the application which discloses the "name of father."
On behalf of the Council, Mr. Adriel Woodman, Executive Director, denied Mr. Underhill's request in a letter dated October 27, 1992. Relying on KRS 61.878(1)(a), he explained that "information on enrollment applications is personal information and that any information we have relating to or naming family members of clients is personal information of a private nature." He therefore declined to release the document.
In his letter of appeal to this Office, Mr. Underhill concedes that the information on the application for enrollment is of a personal nature, and should not be made available for public inspection. He expresses the belief that he is the father of the named child, and that his name appears on the application. Continuing, he notes:
I don't want to know if there is another name or no name, only if my name is listed as the father.
* * *
[D]o I not have the right to know if my name and only my name is listed as the father?
(Emphasis in original.)
We are asked to determine whether the Council properly relied on KRS 61.878(1)(a) in denying Mr. Underhill's request. For the reasons set forth below, we conclude that the Council was prohibited from releasing the requested record to Mr. Underhill by operation of KRS 61.878(1)(j), which incorporates 20 U.S.C. § 1232g, The Family Educational Rights and Privacy Act of 1974, popularly known as the Buckley Amendment. As we noted in OAG 82-169 and OAG 82-450, we are not bound to any procedure of considering only the reason given by the agency in substantiating its position. Because we believe KRS 61.878(1)(j) is dispositive of this appeal, we will not address the applicability of KRS 61.878(1)(a) to the requested records.
KRS 61.878(1)(j) permits an agency to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " This provision incorporates 20 U.S.C. § 1232g, a federal statute which regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. The Buckley Amendment precludes 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.
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 students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 U.S.C. § 1232g(b)(1), which provides:
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 [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth]) of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities]. . . .
It is the opinion of this Office that the Buckley Amendment bars the release of an education record, such as the enrollment application at issue in this appeal, to a third person, such as Mr. Underhill, without the prior written consent of a parent. The Head Start program in which the named child is enrolled receives substantial funding from the federal government, and receipt of these funds would be jeopardized if the Council failed to adhere to the amendment. While Mr. Underhill believes he is the father of the named child, paternity has apparently never been established. Indeed, it appears that he is attempting to determine whether he is the child's father by reviewing his enrollment application. While the Buckley Amendment recognizes the right of a noncustodial parent to inspect the education records of his or her child[ren], see, e.g., Page v. Rotterdam-Mohonasen Central School District, Sup., 441 N.Y.S.2d 323 (1981), proof of paternity or maternity is a precondition to inspection. We believe that until Mr. Underhill successfully establishes paternity, 20 U.S.C. § 1232g(b)(1) precludes release of the requested record, absent the child's mother's consent.
This position finds support in the federal regulations implementing the Buckley Amendment. 34 C.F.R. Subtitle A § 99.4 provides:
An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, state statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.
A parent is defined as:
[A] natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.
34 C.F.R. Subtitle A § 99.3. Among the information deemed "personally identifiable, " and therefore not subject to disclosure, is "[t]he name of the student's parent or other family member." 34 C.F.R. Subtitle A § 99.3.
Mr. Underhill may or may not be the named child's parent. He does not indicate that his name appears on the child's birth certificate, or that paternity has been established through court proceedings. KRS 406.021. While we can find no caselaw directly on point, we believe that he must be treated as a third person, for purposes of the Buckley Amendment, until such time as paternity has been established, and the child's education records should not be released to him without the child's mother's written consent. We therefore conclude that although the Council invoked the wrong exception, it properly withheld the enrollment application to which Mr. Underhill sought access.
Mr. Underhill may challenge this decision by initiating action in the appropriate court pursuant to KRS 61.880(5) and KRS 61.882 .