Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The single question presented to the Attorney General in this open records appeal that is capable of resolution under the Open Records Act 1 is whether the Bracken County Board of Education violated provisions of KRS 61.870 to 61.884 in denying Steven J. Farmer's request for copies of N. F.'s 2 education records. For the reasons that follow, we find that conflicting evidence in the record on appeal precludes this office from conclusively resolving the question in Mr. Farmer's favor or determining that the Board's denial of his request constituted a violation of the Open Records Act.
In response to Mr. Farmer's request, then Bracken County Schools Superintendent Bob Seiter, Jr., notified Mr. Farmer that his request was denied "[b]ased on information given to [the Superintendent] by Bracken County Middle School." In supplemental correspondence directed to this office following commencement of Mr. Farmer's appeal, Board Attorney W. Kelly Caudill advised:
[Acting Superintendent Sam] Hall pulled the file and the notes therein reflect that Steven J. Farmer is not listed in [N. F.'s] birth certificate as her father. Other than his records request, there was no proof shown that he was the father of the child. No custody orders or DNA test results were produced.
Accordingly, Mr. Caudill explained, "the Bracken County Schools were reluctant to provide him with [N. F.'s] records." Given the conflicting evidence in the record on appeal, noted above, we find that the Bracken County Board of Education's reluctance to produce the records was not unreasonable and that the absence of conclusive proof of Mr. Farmer's paternity justified the Board's denial of his request.
In 01-ORD-178, this office was asked to determine whether Holmes High School properly denied a father's request for his children's education records. The record on appeal reflected that an order had been entered by the Boone Circuit Court prohibiting the father from gaining access to his children's records. At page 2 of that decision, we observed:
KRS 61.878(1)(k) permits a public agency to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " The Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, regulates access to education records. In OAG 90-52, we addressed FERPA and parents' right to access to the educational records of their children stat[ing]:
(Emphasis added.)
Since the Boone Circuit Court has enter an Order prohibiting [the requester] access to his children's educational records, Holmes High School properly denied him access to those records under authority of KRS 61.878(1)(k); 20 U.S.C. § 1232g; 34 C.F.R. § 99.4; OAG 90-52.
While the facts in 01-ORD-178 are distinguishable from the facts in the instant appeal, in that decision, as well as in the authorities cited therein, the Attorney General emphasized the importance of conclusively establishing the identity of the requester and his legal entitlement, or lack thereof, to the records requested.
Mr. Farmer tenders a letter from the United States Department of Education, Office of Family Policy Compliance, dated February 2, 2004, that confirms the position the Bracken County Board of Education takes. That letter states, in part:
FERPA is a federal law that gives custodial and noncustodial parents alike the right to have access to their child's education records, unless the school has evidence that there is a court order or state law that specifically revokes parental rights. A school may ask for legal certification denoting parenthood, such as a court order or birth certificate, from the parent requesting access to records.
(Emphasis added.) The voluminous record before us contains a 1991 divorce decree from Harris County, Texas, identifying Mr. Farmer as N. F.'s father, but does not contain a copy of N. F.'s birth certificate. That birth certificate, which is on file with the Bracken County Board of Education, does not identify Mr. Farmer as N. F.'s father. Because the Board risks forfeiture of federal funding not just for denying parents access to their child's education record, but also for releasing education records to persons not entitled to such records, we find that the Board's denial of Mr. Farmer's request, absent conclusive proof of his paternity, did not constitute a violation of the Open Records Act.
Mr. Farmer has elected to simultaneously pursue this matter through the Office of Family Policy Compliance, United States Department of Education. Given that office's broad authority in such matters, the limitations inherent to an open records appeal before the Kentucky Attorney General, and our reluctance to interpose ourselves in an apparent dispute between competing jurisdictions, we urge him to proceed to a final resolution of this dispute in the federal forum or through the courts.
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.
Steven J. Farmer1016 Sarah Drive Kennett, MO 63857-1237
W. Kelly Caudill215 Stanley Reed Ct.Maysville, KY 41056
Sam HallActing SuperintendentBracken County Schools348 West Miami StreetBrooksville, KY 41004
Footnotes
Footnotes
1 Pursuant to KRS 61.880(2)(b)3., the deadline for issuing this decision was extended by thirty days on July 27, 2004. Since July 27, Mr. Farmer has submitted voluminous correspondence relating to access disputes with the Robertson County Board of Education, the Cabinet for Health and Family Services, and the Maysville Police Department, and non-records access disputes with the Cabinet, among others. This correspondence evidences Mr. Farmer's concern for N. F., but does not establish his entitlement, as N.F.'s birth father, to her education records. To the extent that Mr. Farmer did not formally appeal the additional records access issues presented, those issues are not ripe for review by this office. See KRS 61.880(1) and 40 KAR 1:030 Section 1. To the extent that he attempts to raise non-records access issues, such as a demand for DNA testing or an investigation into the conduct of the Cabinet and the courts, these issues are not capable of resolution under the Open Records Act. KRS 61.880(2)(a) directs the Attorney General to "review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays, and legal holidays [except as provided for in KRS 61.880(2)(b)], a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884," but does not invest him with authority to order testing or conduct investigations within this narrow function.
2 N. F. is identified by name throughout the correspondence appended to Mr. Farmer's appeal. In deference to her privacy interests, we identify her by her initials.