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 Fayette County Public Schools violated the Open Records Act in denying Lexington Herald-Leader reported Lori Becker Hayes's request for records relating to the transfer of children from Crawford Middle School. For the reasons that follow, we find that although its original response was deficient, the Fayette Schools' denial of Ms. Hayes's request was substantively correct. We therefore affirm the Fayette Schools' denial of the Herald Leader's request.
On March 18, 1999, Ms. Hayes requested "a copy of the list of parents who requested to transfer their children from Crawford Middle School this year . . . [or] copies of the response cards parents returned to the district requesting the transfer." 1 Ms. Hayes stated that it was her understanding "that school officials held a meeting with concerned parents recently, and after the meeting, 41 parents asked to move their children." It was against this factual background that Ms. Hayes submitted her request.
In a response dated March 19, 1999, Elizabeth J. Fugazzi, assistant to Fayette County Public School Superintendent Peter Flynn, denied the Herald-Leaders' request. Relying on KRS 61.878(1)(a), she explained that the records identified in Ms. Hayes's request contain "information of a personal nature where the public disclosure there of would constitute a clearly unwarranted invasion of personal privacy. " Ms. Fugazzi did not elaborate.
In subsequent conversations with Fayette County Board of Education general counsel Virginia W. Gregg, the Herald-Leader was advised that the Fayette Schools also relied on KRS 61.878(1)(k), incorporating the Family Educational Rights and Privacy Act, 20 USC § 1232g into the Open Records Act, and KRS 61.878(1)(l), incorporating the Kentucky Family Education Rights and Privacy Act, KRS 160.700 et seq. into the Open Records Act in denying Ms. Hayes's request. Unable to resolve the records access dispute, the Lexington Herald-Leader initiated this appeal. Having considered the arguments advanced by the Herald-Leader and the Fayette Schools, we conclude that the records were properly withheld on the basis of KRS 61.878(1)(k) and 20 USC § 1232g, KRS 61.878(1)(l) and KRS 160.700 et seq. , as well as KRS 61.878(1)(a).
We begin by noting certain irregularities in the Fayette Schools' original response to Ms. Hayes's request. KRS 61.880(1) establishes guidelines for public agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 857 (1996) (emphasis added). The court concluded that a "limited and perfunctory response" to a request did not "even remotely comply with the requirements of the Act - much less . . . amount [] to substantial compliance." Id.
To the extent that the Fayette Schools' original response to Ms. Hayes's request consisted of little more than a bare reference to the exception upon which it relied, without a supporting explanation of how the exception applied to the records withheld, it was deficient. We remind the Fayette Schools that the requirements set forth in KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Fayette Schools to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Fayette County Public Schools properly relied on KRS 61.878(1)(k) and 20 USC § 1232(g), the Federal Family Educational Rights and Privacy Act (FERPA), as well as KRS 61.878(1)(l) and KRS 160.700 et seq. , the Kentucky Family Education Rights and Privacy Act (KFERPA), in denying Ms. Hayes's request. 2
The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20 USCA § 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." With the exception of certain narrow categories of records identified at 20 USCA § 1232(4)(B)(i) - (iv), and not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two-part test described above. The corresponding provision in Kentucky's act defines the term "education record" 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.
It too contains four exclusions which basically track the language of the federal exclusions, also not relevant here, and it too is intended to be inclusive.
The Family Educational Rights and Privacy Act 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 insuring parents of students, and students themselves if they are over eighteen years of age, access to their education records.
20 USCA § 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 USCA § 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]. . . .
The goal of this legislation, as we understand it, was "to end denial of access to parents and students, and to prevent violations of student and family privacy rights by the release of unscreened records to third parties without parental or student consent." Note, Federal Genesis of Comprehensive Protection of Student Educational Record Rights: The Family Educational Rights and Privacy Act of 1974 , 61 Iowa Law Review 74 (1975). With respect to parent access to their children's records, the Act serves two purposes:
First, the student education records contain information that the parent needs in order to help plan the student's future. It can scarcely be denied that items such as educational testing results, attitudinal and behavioral studies, and disciplinary records relating to the student, are needed in order to make educational and vocational decisions for the student. Second, and equally important, parental access is needed to facilitate the correction of erroneous and harmful material that makes its way into students' files. Such inaccurate materials can have devastatingly negative effects on the academic future and job prospects of students if parents are unaware of their presence in the record and cannot have them corrected.
Id. at 94. With respect to nondisclosure of education records to third parties, the Act serves an equally important purpose:
Even after the enactment of FERPA's provisions designed to facilitate correction of student records, inaccurate and inappropriate information may remain in pupils' files either because the interested parent or student did not challenge the contents or because a challenge which was made was unsuccessful. More importantly, the release of admittedly accurate student documents to third parties who have no legitimate educational interests or related needs violates the privacy rights of the students.
Id. at 109. It is reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act, 3 are intended to serve these same purposes.
It is the opinion of this office that the response cards submitted by the parents of children enrolled at Crawford Middle School to the Fayette County Public Schools, reflecting the decision to transfer their children from the school, qualify for protection as education records under both the federal act and the state act. The response cards are records which contain information directly related to a student and are maintained by an educational agency or institution. In contrast to a record containing harmless directory information, the response card is the formal instrument by which parents exercise their right to make an important educational decision on behalf of their child. The cards implicate both student and family privacy interests which directory information, by its nature, does not implicate. As the Kentucky Court of Appeals recently observed in J. Kyle Foster v. Hardin County Schools , No. 1997-CA-000960MR (3/19/99), cited by both the Herald-Leader and the Fayette Schools in support of their positions. "In no other circumstance is the need to balance [the competing interest of the public's access to public records and the individuals right to privacy] greater than to protect a minor and parent from intrusions into educational records." Foster at 4. It is precisely these privacy interests which are at stake here, and to which both FERPA and KFERPA extend their protection. 4
Moreover, it is our opinion that KRS 61.878(1)(a) also authorizes nondisclosure of the disputed records. While this office has, in the past, expressed the view that the privacy exception does not authorize the nondisclosure of the names of students enrolled at a particular school, 5 our analysis in OAG 88-50 is not controlling here. As noted, what is at issue in the appeal before us is the public's right of access to records reflecting a critical educational choice made by parents on behalf of their child, and the parents' and child's competing privacy interests in those records. To the extent that already disclosed records, or information contained in these records, reveals that the Fayette County Public Schools has properly executed its statutory duties arising under Chapter 158 of the Kentucky Revised Statutes, we conclude that the parents' and child's privacy interests must prevail. As noted, Kentucky's courts have recognized that the need to balance the competing interests of public access and personal privacy is nowhere greater than in the context of education. Foster , above. That privacy interest, postulated above, arises from the parents' right to make an educational choice on behalf of their child without intrusion.
The competing public interests cannot be discounted. As the Herald-Leader correctly observes, "a school whose declining test scores have mandated certain action" is a matter of" great public concern." It is, however, the conduct of the Fayette Schools in discharging this mandate, and not the parents in exercising their right of choice, that is the focus of the Open Records Act. Our review of the record demonstrates that from records and information already disclosed, the public has learned that in 1998 Crawford Middle School fell into the lowest category as a result of state assessment tests, namely decline-parental notification, that Fayette County notified parents in the Crawford Middle School attendance area of the transfer option in December, and that 41 parents requested the transfer option. The only additional information that could be gleaned from disclosure of the records, as the Herald-Leader candidly acknowledges, is through "derivative use" of the parents' names which appear on the response cards.
In 96-ORD-115, we examined the concept of derivative use, observing:
This concept has been expressly recognized by a number of lower courts in the federal system, although it has not yet been approved by the United States Supreme Court. Under this concept, the public interest served is dependent upon the requester's use of the identifying information to question the individuals identified about the public agency's diligence in discharging its duties. Thus, in Ray v. United States Department of Justice, 852 F.Supp. 1558, 1564-65 (S.D.Fla. 1994), a federal district court found a "derivative use" public interest in the release of a list containing the names of Haitian nationals returned to Haiti which enabled the requester to conduct follow-up interviews for purposes of determining if the INS is performing its duties. See also, Public Citizens, Inc. v. RTC , No. 92-0010, slip op. at 8-9 (D.D.C. March 19, 1993); Thott v. U.S. Dep't. of the Interior , No. 93-0177-B, slip op. at 5-6 (D. Me April 14, 1994). This office has also implicitly recognized the concept of "derivative use." See e.g., 94-ORD-133, holding that release of the identities of 911 callers "will facilitate the public's ability to monitor the [911] Dispatch Center's performance by enabling the public to ascertain who, if anyone, is misusing or abusing the system by making unreasonable demands on the service or calling in false reports[,] . . . to assess the effectiveness of the services through direct communication with persons who have availed themselves of the services[, and] to evaluate whether services are rendered in a uniform matter regardless of the callers' identities."
96-ORD-115, p. 5 (emphasis added). Although we are reluctant to abandon the concept of derivative use, we believe that where, as here, the privacy interests implicated are strongly substantiated, the public's interest in derivative use of records or information must yield to those privacy interests.
"One of the most time honored rights is the right to be left alone. . . ."
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 829 (1994). As in Zink , we fail to see why a parent who has exercised his option to transfer his child from one school to another should have that right disturbed merely because he is required to submit a response card to the school system. This is particularly true where no open records related public purpose is directly advanced by disclosure of the records. We therefore affirm the Fayette county Public Schools denial of the Lexington Herald-Leader's request.
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 It is well-established that a public agency is not required to compile a list to satisfy an open records request. See, for example, 96-ORD-251 and authorities cited therein. We therefore limit our review to the propriety of the Fayette Schools' denial of Ms. Hayes's request for the response cards.
2 KRS 61.878(1)(k) and (l) require public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation; and
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 KRS 160.715(1) thus provides:
Parents of students or eligible students attending public institutions or who have been in attendance shall have the right to inspect and review student education records within a reasonable time of making a request to inspect.
KRS 160.705(1), on the other hand provides:
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 [with the written consent of the parents or eligible students, or to individuals or entities identified in KRS 160.720(2)(a) through (g)].
4 This position was confirmed by Ms. Ellen Campbell, who is attached to the Family Policy Compliance Office of the United States Department of Education, which mediates disputes under FERPA. It was her office's view that FERPA's protection would extend to the response cards.
5 Given the evolution of the privacy exemption since 1988, when the referenced opinion was issued, it is unclear whether we would reach this conclusion if the same issue was presented to us today.