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 Bell County School System violated the Open Records Act in denying Thomas Bennett's request to inspect a videotape recording of an incident involving Mr. Bennett's son that occurred on a Bell County school bus on September 1, 1999. For the reasons that follow, we find that the Bell County Schools did not violate the Act in denying the request.
On September 8, 1999, Mr. Bennett requested that he be afforded an opportunity to view "a school bus V.H.S. tape recording [made on] . . . September 1, 1999, [on] bus number 14, driven [by] Frank Mason." Mr. Bennett explained that the tape recording would reflect that an older student riding the bus threatened and intimidated Mr. Bennett's son, and a number of other younger students. In a response dated September 13, 1999, Director of Transportation for the Bell County School System, Lorraine Brock, denied Mr. Bennett's request, explaining:
Due to the confidentiality of all students that ride our buses only the personnel of the Bell County Board of Education that have received training in confidentiality can view these tapes.
In addition, Ms. Brock indicated that although there was a camera on bus number 14, a review of the tape disclosed that it ran out on August 30, and was not immediately replaced. Thus, the incident that occurred on September 1 was not recorded. This appeal followed.
In his letter of appeal, Mr. Bennett noted that he has received conflicting stories concerning the existence of the videotape. He stated that he had been "led to believe" that Jeff Saylor, Bell County High School, had reviewed the tape, and that Principal Saylor had gleaned additional information about the incident from the tape, including the identities of two other unnamed high school students who were apparently involved. Mr. Bennett further indicated that on September 7, he and his wife went to Ms. Brock's office where they spoke to an employee named Robert. Mr. Bennett stated that Robert advised them that it was he who retrieved the tape from bus number 14, and delivered it to Principal Saylor with whom he viewed the tape. At this point, Mr. Bennett continued, Ms. Brock arrived at her office, and proceeded to advise the Bennetts that "the tape had been put in new on Wed. Sept. 1, 1999," but had not yet been reviewed. Upon being reminded of Principal Saylor's statements concerning the tape, Mr. Bennett concluded, Ms. Brock confirmed that the tape had run out on the previous day, "then stated [that the Bennetts] could not review the tape because they could not block other kid's [sic] faces." In order to independently substantiate when the tape ran out, Mr. Bennett requested, in the course of his letter of appeal to this office, that the Bell County Public Schools furnish him with "the last 3 minutes of the tape dated 8/30/99, and the [first three minutes of the] one dated 9/21/99." Mr. Bennett raised a number of additional questions concerning the propriety of Bell County Public School's transportation policies and the adequacy of the methods used in storing the videotapes. However, we must state, at the onset, that these non-open records questions cannot be resolved in the context of a KRS 61.880(2) appeal.
Upon receipt of notification of this appeal, Bell County Public Schools Safety Director, George Thompson, prepared a supplemental response in which he elaborated on the school system's position. He reaffirmed the view "that a parent viewing a video of student behavior on a school bus that is inclusive of students other than their own child is a violation of confidentiality. " Continuing, he observed:
We are not preventing Mr. Bennett from viewing the videos requested in order to hide any evidence regarding an alleged terroristic threat made to his son on 9-1-99. We are only trying to protect the confidentiality rights of the other students that are in the video.
For the first time, the Bell County Public Schools argued, through Mr. Thompson, "that such videos are indeed an educational record that is [sic] protected by [the Family Educational Rights and Privacy Act] ." Mr. Thompson enclosed a copy of Bell County Board of Education policy 06.34, along with a copy of the system's "Cameras as Surveillance Devices" policy contained in the code of conduct handbook, the texts of which appear below. 1
As an additional basis for denying access to the tape, Robert B. Bowling, attorney for the school system, argued in a letter to this office dated September 24, that "pursuant to KRS 61.878(1)(a) the public records ( i.e. , videotape) requested by Mr. Bennett contains information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of the personal privacy of all of the children on the school bus mentioned." In support, Mr. Bowling cited
Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992) and
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). In closing, Mr. Bowling reiterated that "the video of the incident in question in unavailable as the videotape ran out on the day prior and was not noticed until the day subsequent to the incident."
We cannot agree that the privacy interests of students engaging in, and subjected to, misconduct in the nondisclosure of a record documenting those activities outweighs the public's interest in disclosure of that record for the open records related purpose of monitoring whether the school system is effectively discharging its duty to insure student safety on school buses. We therefore cannot affirm the Bell County Public School's denial of Mr. Bennett's request on this basis. Nevertheless, we must agree that the disputed videotape, if it exists, 2 is an education record within the scope and meaning of the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and its Kentucky counterpart, codified at KRS 160.700, et seq. Because the record apparently contains information on more than one student, and that information is inextricably intermingled and therefore nonsegregable, we conclude that the school system cannot disclose the videotape in such a way as to meaningfully honor the rights of the Bennetts to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the tape to third parties.
We begin by noting certain irregularities in the Bell County Schools' original response to Mr. Bennett'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 Bell County Schools' original response to Mr. Bennett's request consisted of little more than a statement that the record was confidential, without reference to the exception upon which it relied or a supporting explanation of how the exception applied to the records withheld, it was deficient. We remind the Bell County 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 Bell County 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 Bell County Public Schools properly relied on KRS 61.878(1)(k) and 20 U.S.C. § 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 Mr. Bennett's request. 3
The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20 U.S.C.A. § 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 U.S.C.A. § 1232g (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 U.S.C.A. § 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 U.S.C.A. § 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, 4 are intended to serve these same purposes.
The appeal before us implicates both of the purposes for which the federal and state laws were enacted: to insure the parents' right of access to their child's education records as well as to insure the parents' right to nondisclosure of their child's education records to third parties. The surveillance tape, which, as noted, must be characterized as an education record, 5 documents the conduct and activities of the Bennetts' son. However, the tape also documents the conduct and activities of numerous other students on the bus, including some students who presumably were not even involved in the incident. In order to honor the Bennetts' right to inspect and review education records related to their son, the Bell County School System would be compelled to compromise the corresponding rights of the parents of the other students on the bus, and the students themselves, in the nonrelease of their education records. Redaction of the faces, or other physically identifying characteristics of the other students, which is required by law when feasible, 6 is apparently not a realistic possibility in this appeal. We assume that redaction would be made difficult, if not impossible, by the number of students on the bus, the constant movement of the students, and the likelihood that some students could be identified by height, weight, hair color, or manner of dress. We must, therefore, affirm the Bell County Public Schools' denial of Mr. Bennett's request on the basis of KRS 61.878(1)(k) and 20 U.S.C. § 1232g(b)(1), and corresponding provisions in state law. Because we conclude that the cited provisions are controlling, we do not address the propriety of the school system's invocation of the privacy exemption, KRS 61.878(1)(a), except to note, as above, that we question the internal consistency of its logic in placing students under video surveillance and subsequently asserting a privacy right on their behalf.
In closing, we note that we are unable to resolve the question of whether Mr. Bennett is entitled to receive a copy of the surveillance tape from the day immediately preceding, and the day immediately following, the incident involving his son insofar as that issue has not been properly presented to the Attorney General. Mr. Bennett must first submit his request to the school system, and await a written response. However, should the school system deny him access to the tapes for the same reasons cited above, this office will, in all likelihood, reach the same conclusion should the matter come to us on appeal.
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 The referenced policies provide, in part, as follows:
Board Policy 06-34
VIDEO RECORDING EQUIPMENT
Video cameras may be installed in the District's school buses to record student behavior during transportation to and from school and school-related events. Evidence of student misbehavior recorded on video may be used to discipline students under provisions of governance authorities.
CAMERAS AS SURVEILLANCE DEVICES
The Bell County School District shall continue to utilize cameras on school buses in order to monitor for safety purposes. In addition, during the 1998-99 year cameras will also be used in some hall ways at the Bell County Middle School and Bell County High School. Only school personnel shall have access to tapes for review of student conduct and behavior unless the parents have signed a release form or unless other students can be obscured if the tape is shown to persons other than school personnel, due to confidentiality concerns.
As we have so often observed, a public agency cannot make records confidential or exempt from public inspection unless the particular records fall within the parameters of one or more of the exceptions found at KRS 61.878(1)(a) through (l). OAG 82-435; OAG 82-158; 92-ORD-1136; 97-ORD-22. As we will explain more fully below, the record in dispute in this appeal qualifies for exclusion from public inspection under KRS 61.878(1)(k) and (l) which incorporate the Family Educational Rights and Privacy Act and its state counterpart into the Open Records Act.
2 The record abounds with inconsistent statements regarding the existence of the tape. If, in fact, it does not exist, arguments advanced in support of denying access are superfluous. We therefore assume that the tape exists, and proceed to assess the validity of the school system's arguments supporting nondisclosure.
3 KRS 61.878(l)(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.
4 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)].
5 This conclusion was confirmed by Ellen Campbell, family policy analyst with the U.S. Department of Education's Family Policy Compliance Office, the federal agency charged with enforcement and interpretation of FERPA, in a conversation with the undersigned that occurred on November 23, 1999.
6 See 34 C.F.R. § 99.12(a) ("If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student"); see , 95-ORD-55.