Request By:
IN RE: Jacqueline Knotts/Shelby County Public Schools
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 Shelby County Public Schools' denial of Ms. Jacqueline Knotts' November 9, 1992, request to inspect the Report of the Special Committee appointed by the Board of Education on September 10, 1992, to investigate a number of complaints made by Ms. Knotts relative to the Board. Ms. Knotts argues that the report is protected under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 g (FERPA), which prohibits disclosure "without [sic] [her] knowledge of what will be disclosed or without [her] written approval."
On behalf of the Shelby County Public Schools, Dr. Leon Mooneyhan, Superintendent, denied Ms. Knotts' request in a letter dated November 12, 1992. Relying on KRS 61.878(1)(i), he maintained that the report is a "preliminary memorand[um] in which opinions are expressed or policies formulated or recommended." Continuing, he observed:
The Report consists of the Committee's recommendations as to how the Board should respond to the demands you made on August 13, 1992, and expresses the committee's opinions.
He acknowledged that if the Board takes action on the report, it will forfeit its preliminary status. In addition, he correctly noted that although KRS 61.884 requires a public agency to allow a person access to a public record in which he or she is mentioned by name, that requirement is subject to the exceptions codified at KRS 61.878. Accordingly, if a record is excluded from inspection under KRS 61.878, it is also excluded from inspection under KRS 61.84. See, e.g., OAG 85-69.
We are asked to determine if the Shelby County Public Schools properly relied on KRS 61.878(1)(i) in denying Ms. Knotts' request. For the reasons set forth below, we conclude that its actions were entirely consistent with the Open Records Act.
This Office has repeatedly recognized the propriety of withholding documents containing preliminary recommendations and memoranda submitted to school boards under KRS 61.878(1)(i), formerly KRS 61.878(1)(h), until such time as they are acted upon and adopted by the board. Thus, in OAG 79-326, we stated that proposals and counterproposals submitted in the negotiation process by a school board and an organization representing teacher employees of the board are not open to public inspection because they contain preliminary recommendations and preliminary memoranda. For this reason, they are exempt under KRS 61.878(1)(i).
Similarly, in OAG 86-42, we held that the McCracken County Board of Education properly withheld "orders of the treasurer" submitted to the board for approval at its regular meetings. In that opinion, we reasoned:
From the time of the initial preparation of the 'Orders of the Treasurer' until that time when the school board formally considers them at a regular or special meeting and authorizes payment, such records would have the status of preliminary drafts, recommendations and memoranda of the treasurer and could be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h) [now codified as 61.878(1)(h) and (i)].
Once the school board has taken formal action on the 'Orders of the Treasurer' at a regular or special board meeting, and particularly where it has directed that such orders be incorporated into the minutes of the school board, those orders then lose their preliminary characterization and would be subject to public inspection. . . .
OAG 86-42, at p. 4, citing
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982).
In OAG 86-54, we ruled that an "administrative memorandum" prepared by the superintendent for submission to the board is not a public record until it is incorporated into a final action by the board. Echoing our earlier position, we opined:
The 'Administrative Memorandum, ' which is basically a written communication from the superintendent to the members of the school board, setting forth the superintendent's proposals and recommendations concerning numerous items to be considered at the school board's upcoming meeting, is not the agenda for that meeting. It is an intradepartmental or intraagency memorandum in which opinions are expressed and proposals and recommendations are made.
OAG 86-54, at p. 3.
Finally, in OAG 87-23, we sustained the decision of a board of education to withhold documents pertaining to an investigation of a teacher, consisting of preliminary recommendations and preliminary memoranda in which opinions are expressed. There we indicated that because the documents did not represent the final decision of the board and the superintendent relative to the teacher in question, they were properly withheld. See also, OAG 91-78.
These opinions clearly demonstrate that the Shelby County Public Schools may refuse to release the report prepared by its special committee relative to Ms. Knotts' complaints under KRS 61.878(1)(i). The report fits squarely within this exception. If, upon final action of the school board, these recommendations are adopted, they will become public records and must be made available for inspection.
Ms. Knotts argues that the report is subject to the Family Educational Rights and Privacy Act, 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 an educational agency or institution. FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's 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. Ms. Knotts takes the position that FERPA mandates disclosure of the report to her, on the one hand, and prohibits it from being made public without her consent, on the other.
Although the term "education records" is sweepingly defined and includes all records containing information directly related to a student, 20 U.S.C. § 1232 g (a) (4) (A), it is the opinion of this Office that the disputed report is not an "education record" within the meaning of FERPA. The report consists of the recommendations of the special committee relative to Ms. Knotts' complaints about the school systems' records management procedures and its superintendent's performance. Although Ms. Knotts' complaints were precipitated by the earlier release of a record governed by FERPA, they do not, in our view, fall within the purview of the federal act. Nor does the report generated by the special committee created to investigate the complaints and to make recommendations. Simply stated, FERPA has no bearing on the issue raised in this open records appeal.
Ms. Knotts raises an issue which implicates the Open Meetings Act as well. She notes that the school board attorney, Ms. Linda Armstrong, has advised the board that the report should be discussed in open session. It is apparently Ms. Knotts' position that the report should be discussed in executive session. We respectfully decline to address this issue inasmuch as it is not, in our view, ripe for an appeal under KRS 61.846.
Ms. Knotts may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(50 and KRS 61.882.