Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
This is an appeal under the Open Records law by Mr. Thomas Stone contesting the refusal of the Russell Independent Schools to grant him access to copies of photographs taken by the school counselor, and copies of e-mails, reports and memoranda sent to and from the counselor for the period beginning May 15, 2001 through January 22, 2002. Mr. Stone also complains that school authorities changed the designation and location of the custodians of the records from the school principals to the superintendent of schools. Mr. Stone's appeal was received in this office on February 21, 2002. A copy of the appeal was distributed on February 22, 2002 to Mr. Stone, the principal of the Russell Primary School, the superintendent of Russell Independent Schools and to the attorney for the Russell Independent School System.
Mr. Stone's request was denied by the school system by letter dated January 25, 2002, on the basis that the records sought from the school counselor were privileged and confidential under the Kentucky Rules of Evidence and statute, specifically, KRE 506 and KRS 160.705. KRE 506 provides that communications between counselor and client are privileged. KRS 160.705 provides that educational records of students are confidential. In his appeal, Mr. Stone points out that he only requests photographs depicting public places or that were posted on bulletin boards or broadcast on closed circuit television. He further points out that, as far as he knows, the camera used by the counselor has only been used to record public events. With regard to the other documents he wants from the school counselor, he states that he does not desire to have any information which identifies or would lead to the identification of a student. His desire is to have information such as non-identifying data. In support he cites KRS 160.720(2)(e) which allows the disclosure of data which does not lead to the identification of a student. By letter dated February 28, 2002, the school replied to Mr. Stone's appeal repeating the contentions that the records of the counselor were privileged and confidential and adding that Mr. Stone's requests are so broad that the school is unable to appropriately respond. In both the original denial and the response to this appeal, the school points out that the counselor and other school officials are in litigation with Mr. Stone. It appears from a copy of a transcript from the legal proceedings attached to the school system's response that the Greenup Circuit Court has placed restrictions on the manner in which Mr. Stone may access and have contact with the school and school personnel. The school contends that much of the information which Mr. Stone has requested from the counselor has already been requested in the lawsuit and that makes his Open Records Request frivolous and unnecessary. Finally, in response to the appeal, the school contends that Mr. Stone is trying to disrupt the essential functions of the school by his numerous Open Records Requests.
Pending litigation does not affect the duty of an agency to disclose non-exempt public records. Kentucky Lottery Corp. v. Stewart, Ky. App. 41 S.W.3d 860 (2001). Of course, the orders of the court supercedes anything in this opinion.
We agree with the school system's contention that any records from the counselor which identify or lead to the identification of a student or a student's parent are privileged and confidential. KRE 506 and KRS 160.705(1). Hence, these records are exempt from disclosure under the Open Records law. KRS 61.878(l). All other records of the counselor which have been requested and which are not privileged or confidential, for example, statistical information, a photograph of a public building, or documents concerning funding, which do not identify students, should be disclosed. Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001). Likewise, photographs of people attending public events or meetings should be disclosed. Photographs of students performing school work are considered confidential as education records and may be excluded from public inspection if the school system has not taken appropriate steps to designate them as directory information. See, 99-ORD-26. KRS 160.700(3), KRS 160.705(1) and 34 CFR § 99.37 . 1 Photographs of students working with the counselor or in counseling would be privileged and confidential. KRE 506, KRS 160.705(1). Mr. Stone also complains about the fact that the school system changed the designation and place of the custodians of records for the school system; specifically, the site-based decision-making councils transferred custodianship of the records to the superintendent. As pointed out by the schools in their response to the appeal, this was done to limit Mr. Stone's contact with school personnel who are on the opposite side of the litigation in the Greenup Circuit Court. There is no evidence that these changes have impeded Mr. Stone's access to records. In fact, the school system has complied with most of Mr. Stone's requests for records. This office has no authority to tell an agency who to designate as the custodian of the records unless there is an intent to subvert the purpose of the Open Records law. KRS 61.880(4). We find no such intent here.
We do not find that the request for all documents, e-mails, reports and memos sent to or from the school counselor for the period beginning May 15, 2001 through January 22, 2002, is burdensome or disruptive. The burden is upon the agency to show by clear and convincing evidence that the request is burdensome or disruptive. KRS 61.872(6). There is no evidence in the record that the school system has been unduly burdened or disrupted. The schools also want Mr. Stone to be more specific about the photographs he requests. Unless he knew the contents of each photograph he could not be more specific. He is entitled to all that are not exempt as mentioned above up to the date of his request. Accordingly, all information requested which is not exempt based upon the client-counselor privilege or confidentiality should be disclosed.
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 In order to receive federal funds the Commonwealth must conform to the requirements of the Family Educational Rights and Privacy Act of 1974, 88 Stat. 371,20 U.S.C. 1232g.34 CFR § 99.37 is a regulation promulgated under the federal Act relating to designation of directory information.