Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bourbon County School District violated the Open Records Act in denying Stacy D. Shannon's August 18, 1998, request for "a complete copy of all records pertaining to each student [identified in an attached list], to include, but not limited to, tuition fees, when fees were paid, and how much." The attached list, captioned "Tuition Students from Paris Independent 97-98," contained the names of fifty-six students, the names of the students' parents or guardians, the students' home addresses, and their "date[s] of contract." For the reasons that follow, we find that although its response was untimely, the Bourbon County School District properly denied Ms. Shannon's request.
The school district's attorney, Gary Bale, responded to Ms. Shannon's request on August 28, 1998. Relying on KRS 61.878(1)(k) and 34 CFR 99, he explained:
The district is not required to release any records or information the disclosure of which is prohibited by federal law or regulation. . . . 34 CFR Part 99 would classify the type of personally-identifiable information you are seeking as being part of the "educational records" of those students for whom you are seeking information. While 34 CFR § 99.3 would seem to allow some of the type of information you are seeking to be designated as "directory information," § 99.37 requires a board policy designating what types of information are to be released upon request as directory information in order to release such to third parties. The only policy on release of student records the Bourbon County School District has, however, is the enclosed 09.14, which contains no designation of directory information.
In closing, Mr. Bale noted that the district could only comply with Ms. Shannon's request if the patents of each child gave their written consent. 1 This appeal, initiated by Ms. Shannon's colleague, Kathy B. Chaney, followed.
We affirm the Bourbon County School District's denial of Ms. Shannon's request. 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 34 CFR 99 et seq. , the body of federal regulations which implements the Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g. It is this statute which, along with its state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700 et seq. , 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. 20 USC § 1232g(4)(A). 2 Under the terms of the Family Educational Rights and Privacy Act, and the implementing regulations upon which Mr. Bale relies, disclosure of personally identifiable student information to third parties in the absence of a parent's or eligible student's prior written consent is restricted. School districts which disclose such records without proper consent run the risk of withdrawal of federal funds. Thus, 20 USC 1232g(b)(1) 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 related 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, and in connection with certain activities]. . . .
Although 20 USC 1232g(b)(1)(B) authorizes the district to release education records to "officials of other schools or school systems in which the student seeks or intends to enroll" upon the fulfillment of certain conditions, and it appears that Ms. Shannon's and Ms. Chaney's employer, the law firm of Landrum & Shouse, represents the Paris Independent School District, there is no evidence in the record that these were the circumstances under which the information was requested or that the conditions set forth in the statute have been met. If the Paris Independent School District wishes to explore these issues further, it may do so by contacting the Family Policy Compliance Office of the United States Department of Education to determine whether the records can be made available to it.
The Bourbon County School District has not taken the necessary steps to designate any information in its student education records as directory information. 3 This includes information which would customarily be treated as such, namely the student's name, address, telephone listing, and date and place of birth. As evidenced by the roster of students submitted along with her request, Ms. Shannon already has access to much of this information. Rather, she seeks "complete copies of all records," with a particular focus on the payment of tuition fees. In our view, this is precisely the kind of information to which the Act restricts access.
Student education records, including records relating to tuition fees, are excluded from public inspection by the Family Educational Rights and Privacy Act, and implementing regulations, and the district risks termination of federal funding if it releases these records without the written consent of the students' parents. As this office noted in OAG 91-177:
The term "education records" was intended to be broadly construed, and the exceptions . . . must be narrowly construed since the value of the [parents'] right of access and [students'] 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).
OAG 91-177, p. 4. 20 USC § 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, above at 84, regardless of whether an individual is identified by name. The records which Ms. Shannon requested directly relate to the students identified in the list attached to her application. The requirement of the federal law is satisfied. The Bourbon County School District cannot release the records to her. We affirm its denial of her request.
We note, however, in closing that the district's response to Ms. Shannon's request was procedurally deficient. KRS 61.880(1) requires that a public agency, upon receipt of a request for records under the Open Records Act, respond in writing to the requested within three working days, and either release the records or state the statutory basis for denying access. Ms. Shannon submitted her request on August 18. Her request was forwarded to the school district's attorney, Mr. Bale, and received in his office on August 27. On behalf of the district, Mr. Bale issued his response on August 28, explaining that the superintendent was out of the office. Eight working days thus elapsed between the date of Ms. Shannon's request and the date on which the district responded. This exceeds the statutory deadline by six days. While "we see nothing wrong with the . . . policy of processing open records requests through [agency counsel] . . ., the policy may be problematic if it occasions delays in agency response." 93-ORD-134, p. 12. We encourage the Bourbon County School District to streamline its policies to insure timely responses to future open records requests.
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 KRS 61.880(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 In a subsequent letter to this office, Mr. Bale also relied on the state counterpart to 34 CFR 99, KRS 160.700(1), which relates to the release of directory information in student education records, and is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
2 In Kentucky, the term "education record" is defined as:
Data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
KRS 160.700(3).
3 20 USC § 1232 g(a)(5)(B) establishes guidelines for the designation of directory information. It provides:
Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent.