Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Hardin County Schools' partial denial of J. Kyle Foster's request for records relating to student discipline in the Hardin County school system from 1990 to the present. On July 11, and again on July 16, 1996, Ms. Foster, a reporter for The News-Enterprise , requested "information pertaining to number of expulsions, suspensions, inhouse suspensions and transfers to alternative schools or programs; for what reasons these disciplinary actions took place (i.e. fighting, disobedience, possession of marijuana or other drugs, truancy, harassment, etc.); and in what schools the offenses took place." Acknowledging that information of this nature implicates privacy concerns, Ms. Foster requested "raw data independent of any individual student record." 1
On July 15, and again on July 18, 1996, Superintendent Lois W. Gray responded to Ms. Foster's request, advising her:
All student hearing records and their ultimate resolutions are confidential student educational records pertaining to individual students. Obviously, the "raw data" is a student record which can only be obtained from student files and is therefore a student record.
Superintendent Gray relied on KRS 61.878(1)(a), KRS 61.878(1)(j), KRS 61.878(1)(k), and KRS 61.878(1)(l) in partially denying Ms. Foster's request, noting that the latter two exemptions incorporate the state and federal laws prohibiting disclosure of educational records. 20 USC § 1232g, Family Educational Rights and Privacy Act; KRS 160.700 et seq. She observed:
When the Board of Education votes to expel a student, the Board action of expulsion is not confidential; however, the name of the student and any personally identifiable information such as the action leading to expulsion, his or her school or other hearing information would be confidential and not released. In that light, you would be able to obtain copies of Board minutes showing a vote for expulsion, but would not be entitled to know any other information concerning the expulsion other than the fact that the Board voted to expel a student.
Superintendent Gray provided Ms. Foster with a compilation of past Board action, but redacted all "hearing information" including the student's name, school, grade, age, sex, race, and offense. Convinced that this is "a right to know issue verses [sic] a school board that doesn't want its dirty laundry aired in public . . .," Ms. Foster initiated this appeal.
In a follow-up letter to this office dated September 10, 1996, Kimberly Winkenhofer Shumate, counsel for the Hardin County Schools, restated the school system's position. Noting that it is the school system's policy "to act in the strictest interpretation of the Family Educational Rights and Privacy Act, " she asserted that "all student hearing records and their ultimate resolutions are confidential student educational records pertaining to individual students." Continuing, Ms. Shumate reasoned:
The federal Family Educational and Privacy Rights Act found at 20 USC 1232g and its state counterpart found at KRS 160.700 et seq. specifically set forth that educational documents of students, which includes disciplinary records, are educational records afforded this right of privacy. Any institution violating this right of privacy of student records is subject to fines and withdrawal of federal funding.
She defended the school system's decision to release only the Board action, arguing that the "raw data" which Ms. Foster requested "could only be obtained from the student's educational records," and therefore enjoyed the protection of the cited exemptions.
We are asked to determine if the Hardin County Schools violated provisions of the Open Records Act in partially denying Ms. Foster's request. For the reasons set forth below, and upon the authorities cited, we conclude that the school system erred in failing to disclose the nature of the offense resulting in disciplinary action, and the school at which the offense occurred, but was otherwise correct in its refusal to disclose personally identifiable information about the student disciplined, including name, grade, age, sex, and race, under the cited exemptions. If the school system maintains similar records on suspensions, in-house suspensions, and transfers to alternative schools, it is obligated to release the records on the terms set forth above. The school system is not obligated to specially create a record containing "raw data" to satisfy Ms. Foster's request, or to permit Ms. Foster to inspect the records containing the information to extract the relevant portions, in view of the clear restrictions to access placed on those records by operation of 20 USC § 1232g, KRS 160.700 et seq. and the cited exemptions.
KRS 61.878(1)(k) permits an agency to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation." This provision incorporates 20 USC § 1232g, the Family Educational Rights and Privacy Act, also known as the Buckley Amendment, a federal statute which regulates access to "education records." 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.
20 USC § 1232g(b)(1) thus 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]. . . .
The term "education records" is defined at 20 USC § 1232g(4)(A) as "those 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." Given the breadth of this language, it is clear that the Buckley Amendment extends to records of student disciplinary actions. Although there appear to be no published decisions supporting this supposition, it was confirmed by Ellen Campbell, Program Specialist in the Family Policy Compliance Office of the U. S. Department of Education, the agency charged with interpretation and enforcement of the Buckley Amendment. Thus, the Hardin County Schools may not disclose disciplinary records of individual students in their entirety. This much is undisputed.
Hardin County, however, views its obligation relative to disclosure of information which appears on existing disciplinary records more narrowly than does the city school system and this office. The Buckley Amendment restricts access to "education records (or personally identifiable information contained therein) . . ." on pain of withdrawal of federal funds. The term "personally identifiable information" is defined at 34 CFR § 99.3 as:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.
While all parties agree that the disciplined student's name, parent or family member's name, address, and other personal identifiers must be withheld, the Hardin County Schools maintain that they are also foreclosed from releasing the student's school, and the nature of his or her offense, from its yearly student hearing data compilation. Based on our discussions with the Family Policy Compliance Office, we believe that this represents an overly restrictive interpretation of the Buckley Amendment. Inasmuch as neither the identity of the school, nor the nature of the offense giving rise to disciplinary action, can be characterized as "personal characteristics . . . or other information that would make the student's identity easily traceable, " we do not believe that these categories of information fall with the strictures of the federal act.
It is the opinion of this office that the Hardin County Schools can discharge its obligations under the Open Records Act, without running afoul of the Buckley Amendment, by re-releasing the already disclosed record of student hearings before the Board of Education without redacting the school and offense categories which appear on those records . As noted, if similar Board records are maintained relative to suspensions and transfers to alternative schools, the Hardin County Schools should also disclose these records, subject to the terms articulated above. This holding does not conflict with KRS 160.705, 2 governing disclosure of student records, and incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although it may, in its discretion, do so, the school system is not obligated to create a new record consisting of the "raw data" Ms. Foster requests. Nor is the school system obligated to open its student education records to Ms. Foster so that she may extract the information she seeks. It is this type of activity that the Buckley Amendment, as well as Kentucky's corresponding confidentiality provision, proscribe. Because we believe that resolution of this appeal turns on the application of specific federal and state statutes, we do not address the applicability of the more general open records exemptions, relied on by Hardin County Schools, to the disputed portions of the student hearing records.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Ms. Foster made an identical request to the Elizabethtown Independent Schools on July 11. In response, she received what appears to be a specially created statistical breakdown, by year, school, nature of offense, and nature of disciplinary action taken, for the period from 1990 to 1996. The Elizabethtown Independent Schools did not disclose the names of the students disciplined, or any personally identifiable information. It is unclear whether this report was already in existence or was generated in response to Ms. Foster's request.
2 KRS 160.705 provides: (1) Education records of students in the public educational institutions in this state are deemed confidential and shall not be disclosed, or the contents released, except under the circumstances described in KRS 160.720.(2) School officials shall take precautions to protect and preserve all education records including records generated and stored in the education technology system.