Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pineville Independent School District violated the Open Records Act in denying Robert B. Bowling's May 23, 2000, request for information relating to 1999-2000 student enrollment in that district. For the reasons that follow, we find that with one exception the District properly denied his request.
In his May 23 records application, Mr. Bowling requested copies of:
1. Pineville Independent School District's listing 1 of out of district students residing in Bell County who attended a Pineville School during 1999-2000 and were appealed or "grandfathered" during the 1999-2000 school year.
2. Pineville Independent School District's listing of out of district students residing in Bell County who attended a Pineville School dating 1999-2000 and were not appealed or "grandfathered" during the 1999-2000 school year.
3. Pineville Independent School District's listing of 1999-2000 KERA Preschool eligible students who constituted the numbers reported on the Kentucky Preschool Enrollment Count Form submitted December 1, 1999 by the Pineville School District to the Kentucky Department of Education. Please include the physical address for each reported child.
4. A list of all Bell County resident students who attended Pineville Preschool during the 1999-2000 school year and were not KERA Preschool eligible.
5. A copy of Pineville Independent School District's 1999-2000 student census with physical addresses.
On June 1, 2000, District legal counsel Robert L. Chenoweth denied Mr. Bowling's request. He relied on "the statutory references to KRS 61.870 et seq. , and conclusions set forth in 99-ORD-73 and 98-ORD-162, . . . adopted by specific reference. " 2 This appeal followed.
In his letter of appeal, Mr. Bowling questioned the District's reliance on 99-ORD-73 and 98-ORD-162, arguing that the requested information cannot be characterized as an education record protected by FERPA and KFERPA since disclosure "poses no violation of a student or family privacy right or expectation." In support, he cited OAG 88-50, an early Attorney General's opinion holding that the privacy exception does not authorize the nondisclosure of names of students enrolled at a particular school but does authorize the nondisclosure of their addresses. Continuing, he observed:
The cases upon which PISD relies, in contrast to a record containing harmless directory-type information, are cases in which the records contain formal information upon which students and parents exercise their right to make an important education decision on behalf of the child. Directory information, by its nature, does not implicate student nor parental privacy interests. Nothing that is being requested is other than directory-type information. They are not educational records.
In 20 U.S.C. 1232g(b)(1), it provides that directory information is information related to a student not normally considered confidential including the student's name, address, telephone listing and date and place of birth. Again, none of the information requested is of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
It was therefore Mr. Bowling's position that the District's reliance on the cited authorities was misplaced.
Additionally, Mr. Bowling questioned the adequacy of the District's response, noting that Mr. Chenoweth "failed to provide particular and detailed information in response to the request." Citing the Kentucky Court of Appeal's decision in Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), he concluded that the Pineville Independent School District's response to his request was limited and perfunctory, and therefore did not comply with the procedural requirements of the Open Records Act.
In a conversation with the undersigned on August 16, 2000, Mr. Chenoweth advised that the Pineville Independent School District has not taken the necessary steps to designate any information in its student education records as directory information. Further, he advised that the District does not maintain "listings" of the information Mr. Bowling requested, but acknowledged that the information could probably be extracted from existing databases, and lists created. The only responsive record currently in existence, Mr. Chenoweth stated, is the "fourth day count" prepared by the district for submission to the Kentucky Department of Education. That document contains enrollment numbers generated by the principals at each school in the District, and arguably satisfies Mr. Bowling's request for the 1999-2000 student census. It does not, however, identify students by name or include their addresses.
It is the opinion of this office that because the Pineville Independent School District has not taken steps to designate any information contained in its student records as directory information, and because the term "education record," as it is defined in both federal and state law, is all-encompassing, the District properly denied Mr. Bowling's request for various "listings" of personally identifiable student information. However, because the "fourth day count" reflecting total enrollment in the District contains raw data, and is devoid of any personally identifiable information, we find that this record does not enjoy the protection of FERPA and KFERPA, and must be disclosed. Finally, we find that by incorporating the statutes and authorities cited in 98-ORD-162 by reference in its response, the District satisfied the procedural requirements of the Open Records Act found at KRS 61.880(1). It is this decision that we find dispositive.
In 98-ORD-162, this office approved a school district's denial of an open records request submitted by another school district for records relating to fifty-six named students because the school district to which the request was directed had "not taken the necessary steps to designate any information in its student education records as directory information[, including] information which would customarily be treated as such, namely the student's name, address, telephone listing, and date and place of birth. " 98-ORD-162, p. 3. This being the case, the district was foreclosed from releasing the requested records without the written consent of the student's parents by FERPA and KFERPA. Fundamental to the decision was the recognition that "20 USC § 1232g(a)(4)(A) requires that an education record directly relate to a student[, and] this requirement is satisfied if a record is 'associated in any manner with an identifiable student' [citation omitted] . . . ." 98-ORD-162, p. 4. The "listings" that Mr. Bowling requested identify students by name and address. 34 C.F.R. § 99.3 defines "personally identifiable information" as, inter alia , the student's name and address. As in 98-ORD-162, the requirement of the federal law is satisfied, and the Pineville Independent School District cannot release the records to him.
At page 3 and 4 of 99-ORD-73, the other open records decision upon which Mr. Chenoweth relied, this office elaborated on the broad scope of the term "education record." There, we observed:
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:
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.
Although statutory mechanisms exist for designating information directly related to a student, including name and home address, as directory information, 3 the Pineville Independent School District has not done so. Mr. Bowling's argument that disclosure of this "harmless directory-type information " does not implicate the privacy interests protected by FERPA and KFERPA is therefore not persuasive. (Emphasis added.)
Nor do we find OAG 88-50, upon which Mr. Bowling relies, persuasive. There, the Attorney General summarily affirmed a school system's denial of a request for the home addresses, but not the names, of students at a particular elementary school without analyzing the question of whether this information fell within the definition of education records or had been designated by the system as directory information. Under a standard privacy analysis, we concluded that the students' names did not qualify for protection under KRS 61.878(1)(a) or FERPA because "the least private thing about a particular person is his name," but the students' home addresses did qualify for protection under these statutes because students "are entitled to privacy as far as their personal lives and . . . activities are concerned." OAG 88-50, p. 3. We analogized the students' privacy interests to those of a public employee. Because we now find that analogy to be flawed, and the analysis of the application of FERPA incomplete, we reverse OAG 88-50. As evidenced by the enactment of FERPA and KFERPA, the privacy interests of students and their parents in education records is different in kind from the privacy interests of public employees in records relating to them. See 00-ORD-148 (affirming school system's denial of request for student attendance records, parking permit records, and bus run reports to the extent the reports identified students by name and pick up and drop off location).
We do not believe that FERPA and KFERPA's protection extends to the 1999-2000 student census that Mr. Bowling requested. Mr. Chenoweth indicates that an arguably responsive record exists in the form of the "fourth day count" prepared by the principals in each school, but that record consists of raw data. It does not identify students by name or home address, and therefore does not contain personally identifiable information within the meaning of 34 CFR § 99.3. We perceive no impediment under state or federal law to disclosure of this record in its existing form, but find that the District is not required to supplement it with "physical addresses" per Mr. Bowling's request. See, for example, 96-ORD-233 (Hardin County School System improperly withheld student school and nature of offense from yearly student hearing compilation as this information was not personally identifiable) ; J. Kyle Foster v. Hardin County Schools , No. 97-CA-000960MR (3/19/99), motion for discretionary review granted, 99-SC-333 (2/16/00).
Turning to the procedural issues Mr. Bowling raises, we find that the Pineville Independent School District complied in all material respects with the requirements of KRS 61.880(1). 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.
As Mr. Bowling correctly notes, in Edmondson v. Alig , above, the Court of Appeals declared that the cited provision "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. The District's response incorporated by specific reference "the statutory references to KRS 61.870 et seq. , and conclusions set forth in 99-ORD-73 and 98-ORD-162." Although Mr. Chenoweth did not restate those statutory references or legal conclusions, he employed "the method of making one document of any kind . . .a part of another separate document by referring to the former in the latter . . . as if it were fully set out therein." Black's Law Dictionary 690 (5th ed. 1979). The effect was to cite the statutory exceptions authorizing nondisclosure and to briefly explain how those exceptions apply to the records withheld. Although an unusual practice in the area of open records, and one to be avoided when dealing with laymen rather than lawyers, we find no procedural error in the Pineville Independent School District's response to Mr. Bowling'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 proceedings.
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. Mr. Bowling should bear this observation in mind in formulating future open records requests.
2 In these open records decisions, the Attorney General dealt with the scope and application of the Federal Family Education Rights and Privacy Act (FERPA), 20 USC § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act (KFERPA), KRS 160.705 et seq. , to records containing personally identifiable information pertaining to students within the public school system. In each decision, we affirmed the school system's denial of open records requests for these records on the basis of FERPA and KFERPA which are incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (1) respectively.
3 See 20 USC § 1232g(a)(5)(B) and 34 C.F.R. § 99.37 for federal procedures and KRS 160.725(1) for state procedures.