Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Owsley County Board of Education's denial of that portion of Robert J. Shuman's open records request for copies of:
All records of corporal punishment by whom and who witnessed and where corporal punishment was conducted for all grades during the years of 1996 thru 1998 in the owsley county kentucky school system.
By letter dated May 3, 1999, Kendall Robinson, Attorney at Law, responding on behalf of the Board, denied Mr. Shuman's request on the grounds that release of the information would constitute an invasion of personal privacy of the students and thus was exempt from disclosure under KRS 61.878(1)(a) and to require the Board to produce the requested information would place an undue burden upon it and thus the request was denied under the additional authority of KRS 61.872(6).
We are asked to determine if the Owsley County Board of Education violated provisions of the Open Records Act in denying Mr. Shuman's request. For the reasons set forth below, and upon the authorities cited, we conclude the Board properly denied access to records of corporal punishment of students under the privacy exception codified at KRS 61.878(1)(a), as well as 20 USC § 1232(g) and KRS 160.700 et seq.
This office has long recognized that records relating to student discipline and "disciplinary proceedings are protected from public disclosure by KRS 61.878(1)(a). . . ." OAG 83-427, p. 3; OAG 89-38. These opinions are premised on the notion that the privacy rights of students in such matters are superior to the public's right to know that the school is discharging its duties relative to the imposition of discipline.
Moreover, although not cited by the Board as a basis of denial, this office has consistently recognized that student education records, including records of student discipline, are excluded from public inspection by operation of the Family Educational Rights and Privacy Act, 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k), and its state counterpart, KRS 160.700 et seq., which is incorporated into the Open Records Act by KRS 61.878(1)(l), which regulate access to a student's "education records." 96-ORD-233; 95-ORD-55. These laws are aimed at preventing violation of student and family privacy rights by providing for the termination of federal funds to agencies or institutions which release student education records (or personally identifiable information contained therein) without the written consent of the student's parents. For purposes of the Family Education Rights and Privacy Act, the term "education records" is defined 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." 20 USC § 1232g (a)(4). 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.
There can be little doubt that a record, or portion of a school record, identifying the student who is the subject of corporal punishment falls within the scope of this definition, and must be excluded from public inspection. In his response to the open records request, Mr. Robinson indicated that records of discipline which include the infraction or offense and the consequence or punishment are maintained separately in the students' individual folder(s). Accordingly, we conclude that the Board properly denied access to the records related to the corporal punishment of Owsley County students, under the additional authority of 20 USC § 1232g, and KRS 160.700 et seq.
Because the foregoing is dispositive of the instant appeal, we need not address the additional basis for denial relied upon by the Board that production of the requested records would constitute an unreasonable burden upon the agency, under KRS 61.872(6).
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.