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 Jefferson County Public Schools violated the Open Records Act in denying Donald L. Miller, II's, September 13, 2000, request for "all documents containing, evidencing or relating to all complaints concerning the admission policies or procedures or administration of those policies applicable to Audubon Traditional School." For the reasons that follow, we conclude that JCPS properly relied on KRS 61.878(1)(k) and (l), incorporating the Family Educational Rights and Privacy Act (20 USC § 1232g), and the Kentucky Family Education Rights and Privacy Act (KRS 160.705, et seq. ), in denying Mr. Miller's request.
In a response dated October 6, 2000, Patricia K. Todd, Executive Director of Student Assignment, Health and Safety for JCPS, denied Mr. Miller's request for complaints and related documentation pertaining to administration of admissions policies at Audubon. She explained:
There are a number of documents that relate to seven other students whose parents either called or wrote to district officials regarding the admissions policies for Audubon Traditional Elementary School. Four of the seven communications, and other documents relating to those four communications will be withheld from public inspection pursuant to KRS 61.878(1)(a), (k) and (l).
The documents withheld from your inspection comprise four letters from parents of students expressing concern over not having been selected to attend Audubon Traditional Elementary School. None of the letters indicate any allegations of improper implementation of the admission policies. The inquiries or comments regard either a parent expressing a desire to be able to enroll their child at Audubon despite the policy or requesting a change in the district's policy to allow a selection preference to the siblings of students already enrolled at Audubon.
Three of the letters contain descriptions of personal family situations related to either the writer's desire to enroll their child at Audubon or the writer's frustration at not being able to enroll their child at Audubon. A response to one of the writers restates the writer's description of his personal family circumstance regarding his enrollment concern. KRS 61.878(1)(a) allows the exception to public inspection for records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. We believe that the writers of these letters did not intend for their personal concerns and the private matters described to be made public. In addition, the letters contain home addresses, and home telephone, or work telephone numbers. One of the parents enclosed a family photograph.
Three of the letters were written by the parents of students currently enrolled in the Jefferson County Public Schools. As such, these letters contain personally identifiable information regarding the referenced students and are protected from public inspection by KRS 61.878(1)(k) and (l), and the laws that afford confidentiality to student education records. These letters contain information directly related to students in attendance in the Jefferson County Public Schools and thus, are not subject to public disclosure pursuant to the Kentucky Family Education Rights and Privacy Act (KRS 160.705, et seq. ) and the Family Educational Rights and Privacy Act (20 USCA Section 1232g).
Finally, there are an additional ten letters relating to one of the parents/students referenced in the preceding paragraphs. These additional ten letters are from the family's pastor, two doctors, family friends, preschool workers, and co-workers of the parent. The letters recommend that the district enroll the child in question at Audubon Traditional Elementary School. These letters are being withheld from public inspection because of the same privacy considerations and exceptions cited above.
Although it is unclear what records were released to Mr. Miller, Ms. Todd indicated that JCPS would redact the parents' names, addresses, and contact telephone numbers on the basis of the same exceptions. This appeal followed.
On appeal, Mr. Miller challenges JCPS's denial of his request for complaints and related documentation, citing JCPS Public Information Officer Lauren E. Roberts' May 4, 2000, statement that "there is no policy preserving confidentiality of complaints from the public to the school system[, and] complaints are open records to the public when a final action has occurred. All student information is redacted . . . ." It is his view that Ms. Roberts' statement is "an admission of the accuracy of the position" (KRE 801A(b)(3)), and JCPS should not now be permitted to "manufacture some policy of confidentiality. " Moreover, he notes:
No section of the Open Records Act even remotely protects from disclosure complaints received by a public agency from the public. These documents are not created by the public agency and when complaints are submitted to a public agency it is an expectation of the complainant that their discontent be known.
For this reason, Mr. Miller asserts, the documents should be disclosed, or, at a minimum, disclosed with the students' names redacted. In closing, Mr. Miller remarks that on May 31, 2000, JCPS disclosed personal counseling records relating to particular students who were identified by name, parent name, and other information, but that with regard to the records at issue in this appeal:
JCPS does not point with any basis to a single exemption contained in KRS 61.878 that is even remotely applicable. It seems that JCPS has drawn the line by stating that if the complaints are about a student (no matter how private or personal), they will be disclosed but if the complaint (no matter how public) is about JCPS it will not be disclosed. Remarkably, there is not even an attempt to produce the documents with only the name of the student redacted which is, at most, all that JCPS could even argue to keep private.
He urges this office to compel production of the disputed records, and to investigate and punish JCPS's practice "of making untrue or unsupportable statements to avoid disclosure of public documents."
This is the third in a series of open records appeals involving Mr. Miller and JCPS. In 00-ORD-119, this office determined that JCPS's reliance on KRS 61.878(1)(k) and (l), incorporating the federal Family Education Rights and Privacy Act (FERPA) and the Kentucky Family Educational Rights and Privacy Act (KFERPA), in denying his request for acceptance forms, and other written evidence documenting a student's acceptance of his or her place in the incoming kindergarten class, was misplaced. In 00-ORD-150, this office determined that JCPS's inability to access and retrieve a requested record in a timely fashion was indicative of a failure to conduct an adequate search for the record, and to establish effective controls over the creation, maintenance, and use of its public records, thereby frustrating full public access. We did not address, in either decision, the issue of access to complaints filed by parents of children attending public schools in which they voiced their concerns regarding their child's enrollment at the traditional school. Nor are we aware of any decisions of Kentucky's courts or of this office resolving the issue of access to complaints submitted by parents on behalf of children attending public schools, regarding the children's enrollment at a particular school, in favor of disclosure. Accordingly, we treat this as an issue of first impression.
Mr. Miller maintains that JCPS is bound by the policy relating to access to complaints articulated by Ms. Roberts in her May 4 letter, and by its June 2 disclosure of "documents purporting to be 'complaints' which disclosed names of parents, names of students, academic difficulties with those students including whether the particular student would be 'held back.'" He argues that no exception to the Open Records Act exclude such complaints from public inspection, and that JCPS fails to advance any legally supportable basis for nondisclosure. We do not agree. It is the opinion of this office that the "error [of disclosing records that are arguably protected by one or more exception codified at KRS 61.878(1)(a) through (l)] cannot be remedied by committing another and thus compounding mistakes . . . ."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996). In our view, KRS 61.878(1)(k) and (l), incorporating FERPA and KFERPA, as well as KRS 61.878(1)(a), support nondisclosure of these records. Whatever the evidentiary implications of a previous admission by a party authorized to make a statement, or the general implications of disclosure of records that should have been withheld, we do not believe that JCPS is foreclosed from reevaluating its former practice, and adopting a uniform policy that is consistent with the laws restricting third party access to education records.
In 99-ORD-217, this office examined FERPA and KFERPA in some depth. At pages 6 through 8 of that decision, 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 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:
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(b)(1) provides:
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, 1 Iowa Law Review 74 (1975) .
. . .
It is reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act, are intended to serve these same purposes.
99-ORD-217, p. 6-8.
Critical to our analysis in the instant appeal is the longstanding recognition that in defining the term "education record," "the congressional intent was to fashion a broad definition."
Belanger v. Nashua, New Hampshire School District, 856 F.Supp. 40, 49 (D. N.H., 1994). Accordingly, student records "do not have to be related to academic matters to be 'education records' under FERPA."
United States v. The Miami University, 91 F.Supp. 2d 1132, 1149 N. 17 (S.D. O, 2000). As long as the records contain information directly related to a student, and are maintained by an educational agency or institution, they fall within the parameters of the federal act, and unauthorized disclosure may result in the forfeiture of federal funds. 20 USC § 1232g(a)(4)(A). Thus, records containing personally identifiable information must be characterized as education records in the broader sense of the term. Given the similarity of this definition of "education record" to the definition of the term found at KRS 160.700(3) of the Kentucky Family Education Rights and Privacy Act, we deem them to be equally expansive.
The records at issue in this appeal fall within the definition of an education record for purposes of both FERPA and KFERPA. They contain information directly related to particular students in attendance, and are maintained by an educational agency or institution. They describe particulars of the children's family situation, and other extenuating factors, which would arguably warrant JCPS in waiving its admissions policy, and therefore cannot be equated with the acceptance forms at issue in 00-ORD-119. Absent parental consent, these records cannot be disclosed without JCPS running the risk of forfeiture of federal funding. The only remaining question is whether parental consent was sought by JCPS. Given the language of both FERPA and KFERPA, recognizing the right of educational agencies to disclose education records to third parties if written parental consent is first obtained, JCPS may wish to determine whether the parents who authored the letters, or on whose children's behalf letters were authored, consent to their release to Mr. Miller. If written consent is given, neither FERPA nor KFERPA prohibit disclosure.
From the perspective of a privacy analysis under KRS 61.878(1)(a), we do not share Mr. Miller's confidence that these parents submitted their complaints with "an expectation . . . that their discontent be known." And while it is certainly true that as a matter of general open records law, access to complaints is the rule rather than the exception once final action is taken on the complaints, Kentucky's courts have rejected the premise that because final action has been taken, disclosure is mandated in all cases.
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 660 (1982);
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327. Moreover, in balancing the public's right to know against the competing privacy interests of the parents and students, we must bear in mind that:
In no other circumstance is the need to balance greater than to protect a minor and parent from intrusions into education records.
J. Kyle Foster v. Hardin County Schools , No. 97-CA-000 960 MR (3/19/99), motion for discretionary review granted, 99-SC-333 (2/16/00). In view of that fact that both federal and state law extend broad protection to the privacy interests of students and parents in education records, we believe that the balance tips in favor of nondisclosure when the records at issue are education records. Again, we remind JCPS that inquiry into the parents' wishes relative to disclosure of the complaints and related documentation may be sought, and that if the parents give their written consent to release, JCPS cannot properly rely on KRS 61.878(1)(a) as a basis for denying access.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994);
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, Ky., 941 S.W.2d 469 (1997).
As noted above, we do not believe that JCPS was estopped from reevaluating past practice and adopting a more restrictive policy on disclosure of education records so long as that policy is uniform. OAG 83-140; OAG 90-117; OAG 91-136; 93-ORD-78. The Court of Appeals' admonition in J. Kyle Foster , above, coupled with federal case law recognizing that a violation of FERPA may be the basis for a civil rights claim under 42 U.S.C. § 1983, suggests a need for greater caution in the release of education records to third parties, and justified a careful reassessment by JCPS of its records access policies. We trust that JCPS has engaged in such a reassessment, and not selective nondisclosure of records based on potential embarrassment to public officials. Because the law supports the position JCPS takes, we must assume the former rather than the latter. If Mr. Miller possesses proof to the contrary, he may present that proof to local prosecutorial authorities. As we have noted in the past, the Attorney General lacks authority to consider proof of willful concealment of public records in the context of an open records appeal, or to mete out punishment for alleged improprieties.
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.