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 Shelby County School District violated the Open Records Act in denying Debbie Medley's April 16, 2002 request for "the opportunity to view any and all videotapes that have been made of classroom 120 of Shelby County High School." Ms. Medley explained that the tapes "would be a valuable tool for me to use to evaluate my performance, as a teacher, as well as the management of my classroom. " For the reasons that follow, we affirm the District's denial of Ms. Medley's request under the Kentucky Open Records Act.
In a letter dated April 22, 2002, John C. Fogle III responded to Ms. Medley's request on behalf of his client, the Shelby County School District. He denied her request " under the authority of the Kentucky Open Records Act, pursuant to KRS 61.878(1)(k), and 20 U.S.C. § 1232g., the Family Educational Rights and Privacy Act ("FERPA"), as well as KRS 61.878(1)(l) , and KRS 160.700 et seq. " (Emphasis in original.) It was the District's position that "the tapes in question constitute education records under the just described federal and state legislation . . . [and that] release is prohibited under KRS 61.878(1)(k) . . . and (l)." Additionally, Mr. Fogle asserted:
Even if [Ms. Medley] is considered to have a valid educational interest ( see, e.g. 20 U.S.C. § 1232g(b)(A); KRS 160.720(2)), the Shelby County Public Schools cannot permit inspection of the tapes as requested under the Open Records Act. To permit inspection under the authority of the Act would amount to an acknowledgement of the right to copy the tapes, see KRS 61.874(1) in derogation of FERPA and KFERPA confidentiality provisions.
This appeal, submitted by John Frith Stewart on behalf of Ms. Medley, followed.
On appeal, Mr. Stewart disputes the District's position. He observes:
Debbie Medley is the teacher of the classes that are conducted in classroom 120 in the Shelby County High School. Medley is a "school official" as defined in KRS 160.700(5), as a person employed in an instructive position with the school board. The record that Medley requested to view is an "educational record" as defined in KRS 160.700(3), as it is "data and information directly relating to a student [or in this case, students] that is collected or maintained by [an] educational institution [][.]" Further, under KRS 160.700(3) the record that Medley requested to view does not fall into an excluded record as outlined in that section.
According to KRS 160.720(2), "[e]ducational institutions shall not permit the release or disclosure of records, reports, or identifiable information on students to third parties [], without parental or eligible student consent, except to: (a) other school officials, including teachers, with legitimate education interests and purposes." [Emphasis supplied.]
He notes that Ms. Medley has articulated a "legitimate education interest and purpose in viewing the records." Continuing, he asserts:
The Shelby County Public Schools would not be violating the Act by permitting Medley the opportunity to view these records. Funding is not restricted if records are released to "teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required." (20 U.S.C. § 1232g(b)(1).) The School Board has conceded that these are "educational records" and has not denied that these records have legitimate educational interests.
In any event, Mr. Stewart maintained, the District's reliance on KRS 61.878(1)(k) and FERPA is misplaced insofar as the federal act "simply restricts funding [to educational institutions that disclose educational records in contravention of its strictures]; it does not actually prohibit any activity." Further:
Nothing in KRS 61.878(1)(l) prohibits Medley from viewing these records. The Shelby County Schools have not directed Medley's attention to any "enactment of the General Assembly" that would prohibit her viewing of these records.
In sum, Mr. Stewart concluded, "the Shelby County Public Schools have no basis for denying Medley's request."
In a supplemental response submitted to this office shortly after Mr. Stewart initiated this appeal, Mr. Fogle elaborated on the District's position. He advised:
The fourth paragraph of the letter appeal submitted on behalf of Ms. Medley contains an acknowledgement that the record at issue should be considered an education record. See Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g et seq; see, also, KRS 160.700 et seq ("KFERPA") and 99-ORD-217 (concluding that videotape recorded for purposes of school bus monitoring constituted an education record within the scope and meaning of the foregoing federal and state legislation and that the Bell County School District, accordingly properly relied on KRS 61.878(1)(k) and KRS 61.878(1)(l) in denying disclosure) .
While Ms. Medley does not dispute that the records at issue in the instant appeal are covered under FERPA and KFERPA, she argues that FERPA "does not actually prohibit any activity" and describes compliance as "a choice made by educational institutions - failure to comply simply restricts funding . . . ." [T]here is no doubt that 20 U.S.C. § 1232g(b)(1) constitutes federal legislation which generally prohibits the disclosure of personally identifiable information contained in education records. This office has repeatedly stated as much, see e.g., 99-ORD-217; 98-ORD-162; 95-ORD-55; 94-ORD-17; 92-ORD-1640.
Further, as a practical and legal matter, compliance with FERPA is not voluntary as intimated by Ms. Medley since federal funding is vital to a school district's educational mission. Ms. Medley's argument ignores the severity of FERPA's enforcement mechanism. See, e.g., 34 C.F.R., §§ 99.66; 99.67, and, in any event, does not serve as a legitimate basis for removing education records from coverage under KRS 61.878(1)(k).
Mr. Fogle refuted Mr. Stewart's statement that the District has identified no act of the General Assembly prohibiting Ms. Medley access to the classroom videotapes, reasserting his client's reliance on KRS 61.878(1)(l) and KFERPA, codified at KRS 160.700 et seq. In closing, he observed:
The issue on this appeal is not whether Ms. Medley has a legitimate educational interest which would permit access to the records in question under FERPA or KFERPA, but whether the records are exempt as a threshold matter under the Open Records Act. This office is not being requested to review the matter of whether Ms. Medley's access to the records in question is permissible by way of an internal request from a teacher to her supervisor, but whether the Open Records Act compels such disclosure. Plainly it does not.
We concur with the Shelby County School District in this analysis.
Both the Kentucky Supreme Court and this office have recognized that the Family Educational Rights and Privacy Act, and its state counterpart, operate as a bar to disclosure of education records, as that term is defined in federal and state law, and that the acts are incorporated into the Open Records Act by KRS 61.878(1)(k) and (l).
Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001); 99-ORD-217, inter alia. These exemptions authorize public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation; and
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
In 99-ORD-217, the Attorney General examined FERPA and KFERPA. At pages 6 and 7 of this decision, this office opined:
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), . . . 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, . . . 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.
We concluded that a videotape of student activities on a school bus was an education record within the scope of FERPA and KFERPA, noting that our conclusion was confirmed by the United States Department of Education's Family Compliance Office. Similarly, in 02-ORD-61, this office held that "photographs of students performing school work are considered confidential as education records and may be excluded from public inspection . . . ."
Mr. Stewart does not dispute the status of the classroom videotapes at issue in this appeal as education records, but asserts his client's broader right of access to the records as a "school official" with a "legitimate education interest and purpose." KRS 160.720(2); 20 U.S.C. § 1232g(b)(1)(A) (excluding from the general prohibition on release of education records "other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests . . ."
As a public agency employee, Ms. Medley enjoys a broader right of access to records relating to her pursuant to KRS 61.878(3) 1 of the Open Records Act, and the videotapes of her classroom arguably qualify as such records. That right is, however, forfeited when the records sought are protected from disclosure by federal or state law as are the disputed records in this appeal. 2 For all other Kentucky Open Records Act purposes, Ms. Medley stands in the same shoes as any other requester and the question of access to the disputed records turns not on her identity and purpose, but on the nature of the records requested. On this point, the Kentucky Court of Appeals has opined:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next.
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994). Stated alternatively, "[t]he exemptions of KRS 61.878(1) may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 89-76, p. 4; see also OAG 82-233 and 01-ORD-8. FERPA and KFERPA, which are incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), prohibit disclosure of education records or personally identifiable information contained therein, without written parental consent, to the public. Under an Open Records Act analysis, Ms. Medley is treated as a member of the public whose access to the disputed records is foreclosed by state and federal law.
We therefore affirm the Shelby County School District's denial of Ms. Medley's request under the Kentucky Open Records Act. However, this opinion does not prohibit disclosure of videotapes or any other educational record to school officials, including teachers, under the applicable provisions of FERPA and KFERPA within the discretion of the educational institution.
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.
John Frith StewartSegal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC1400-B Waterfront Plaza325 W. Main StreetLouisville, KY 40202-4251
Stephen C. Emery, Esq.Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC1400-B Waterfront Plaza325 W. Main StreetLouisville, KY 40202-4251
Dr. Leon MooneyhanP. O. Box 159Shelbyville, KY 40066
John C. Fogle, IIIChenoweth Law Office121 Bridge StreetFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(3) thus provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
2 See, most recently, 01-ORD-246, p. 12, and authorities cited therein for the proposition that "[w]hen applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exception of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly."