Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hazard Independent Schools violated the Open Records Act in denying Perry County Public Schools Superintendent John Paul Amis' February 28, 2005, request for:
. A current list of students who reside in the Perry County School District but attend the Hazard Independent Schools[;]
. The addresses, including 911 addresses if available, of all students living n the Perry County School District but attending the Hazard Independent Schools[; and]
. Any information regarding tuition paid by students living in the Perry County School District but attending the Hazard Independent Schools for the 2003-04 and 2004-05 school years . . .includ[ing] a list of students involved and the amount paid and a copy of receipts for tuition paid.
For the reasons that follow, we find that Hazard Independent violated the Open Records Act in denying Perry County's request for the list of students and their addresses 1 on the basis of KRS 61.878(1)(a) and 20 U.S.C. § 1232g, 2 but affirm the denial of Perry County's request for "information regarding tuition paid by students" on these bases.
On behalf of the Hazard Independent Schools, attorney Sam R. Collins denied Perry County's request by letter dated March 3, 2005. Mr. Collins advised:
KRS 61.878(1)(a) specifically exempts records which contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(k) specifically exempts records or information the disclosure of which is prohibited by federal law or regulation. Further, the disclosure of information directly related to a student is regulated by the Family Educational Rights and Privacy Act.
Relying on 00-ORD-158, Hazard Independent maintained that the requested information "clearly falls into these exemptions." In addition, Mr. Collins argued that Perry County's open records request implicates "economic information about the students protected from disclosure by federal law. " Dissatisfied with Hazard Independent's disposition of Superintendent Amis' request, the Perry County Public Schools initiated this appeal through attorney Timothy Crawford.
On appeal, Mr. Crawford asserts that Perry County is entitled to the requested information under "nonresident student contracts entered into with Hazard Independent Schools last year . . . requir[ing] each district to inform the other of students who are attending their respective districts as nonresidents under these nonresident contracts." Moreover, Mr. Crawford notes, pursuant to KRS 159.040 and 159.010(1) Perry County must verify the enrollment and attendance of all school age children who live in the Perry County School District "and no person shall refuse the investigation of the compulsory attendance laws." By operation of the latter provision, he observes, "students who reside in Perry County but attend Hazard Independent under a nonresident . . . [contract] are attending Hazard Independent as a privilege while the actual duty to otherwise educate the Perry County residents lies with the Perry County Schools." In closing, Perry County asserts its entitlement to the information under the Kentucky Family Education Rights and Privacy Act (KRS 160.700-160.730) and its federal counterpart, 20 U.S.C. § 1232g, both of which "allow the release of students' names, addresses, and telephone listings as public directory information . . . ."
In supplemental correspondence directed to this office following commencement of this appeal, Mr. Collins reaffirmed Hazard Independent's reliance on KRS 61.878(1)(a) and 00-ORD-158 and addressed Perry County's arguments in support of disclosure. He maintained that Hazard Independent has already fulfilled its reporting obligation under the nonresident student contract by providing the names of nonresident students, but that the information sought "goes far beyond the contract." In particular, Mr. Collins argued, information relating to whether students pay tuition "is not necessary for Perry County to discharge any duty pursuant to the compulsory attendance laws."
Because the Hazard Independent Schools has taken the steps necessary to designate the requested information as directory information, with the exception of tuition information, we find that its reliance on 20 U.S.C. § 1232g, as construed in 00-ORD-158, to withhold names and addresses of students is misplaced. Further, we find that in balancing the privacy interests implicated against the significant public interest in monitoring Hazard Independent's compliance with school attendance area policy, the balance tips in favor of disclosure of the students' names and addresses. 3 However, we affirm Hazard Independent's denial of that portion of Perry County's request relating to tuition information.
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. § 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. § 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.
In 00-ORD-158, this office was asked to determine if the Pineville Independent School District properly relied on "the statutory references to KRS 61.870 et seq., and conclusions set forth in 99-ORD-73 and 98-ORD-162, 4 . . . adopted by specific reference," in denying Bell County Public Schools' request for, inter alia, the "Pineville Independent School District's listing of out of district students residing in Bell County who attended a Pineville School during 1999-2000." Upon inquiry, this office ascertained that Pineville Independent had "not taken the necessary steps to designate any further information in its student education records as directory information." 00-ORD-158, p. 3. On this basis, we affirmed Pineville Independent's denial of the request for listings of personally identifiable student information. We relied, in chief, on 98-ORD-162 in which we 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 (emphasis in original). This being the case, we reasoned:
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 U.S.C. § 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.
Extending this reasoning to the facts giving rise to 00-ORD-158, we concluded that because the "listings" requested identified students by name and address, and because 34 C.F.R. § 99.3 defines 'personally identifiable information' as, inter alia, the student's name and address," the requirement of the federal law [was] satisfied and the Pineville Independent School District [could] not release the records. . . ." 00-ORD-158, p. 4.
Nevertheless, in 00-ORD-158 this office reversed OAG 88-50 affirming agency denial of a request for student home addresses. At page 6 of 00-ORD-158, we observed:
[In OAG 88-50], 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.
00-ORD-158, p. 6.
On at least one occasion since 00-ORD-158 was issued, the Attorney General has concluded that a school district's reliance on KRS 61.878(1)(a) and KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. § 1232g and KRS 160.700, et seq., into the Open Records Act, to deny access to a list of the names and legal mailing addresses of students awaiting enrollment at a named elementary school within the school district, was misplaced. Critical to our analysis in 03-ORD-120 was the fact that the subject school district "[did] not maintain that it [had]taken no steps to designate the requested information as directory information and its earlier disclosure of similar if not identical, information confirm[ed] that it [had]." 03-ORD-120, p. 6. "Under these circumstances," we concluded, "the board's invocation of 20 U.S.C. § 1232g and KRS 160.700, et seq., [was] legally unsupportable." Id. In addition, we rejected the school district's claim that the wait list containing student names and addresses was protected by the privacy exception, KRS 61.878(1)(a), opining:
The public's interest in disclosure of records reflecting whether the board has fully and fairly complied with school attendance area policies must be deemed to outweigh the privacy interests of parents who have expressed a preference for enrolling their children in an alternate school.
Id. at 8. We believe that 03-ORD-120, rather than 00-ORD-158, is dispositive of the issue presented in this appeal.
Our review of the Hazard Independent Schools Online Manual, www.hazard.k12.ky.us, discloses that Hazard Independent has taken the steps necessary to "[a]pprove[] 'directory information' [consisting of]:
student names and addresses, telephone numbers, date and place of birth, major field of study, participation in officially recognized activities and sports, photograph/picture, grade level, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and most recent educational institution attended by student.
Student Records, 09.14, Student Directory/ Protected Information. The Online Manual further discloses that eligible students, parents, or guardians who do not wish to have directory information released are afforded the opportunity to "notify the Superintendent in writing within thirty calendar days after receiving notification of FERPA rights" to assert their right of nondisclosure. As in 03-ORD-120, these facts are critical to our analysis. Directory information is understood to represent information related to a student not normally considered confidential, 20 U.S.C. § 1232g(b)(1) and KRS 160.700(1). Although the statutes relating to disclosure of directory information are couched in permissive, rather than mandatory, terms, we believe that it is somewhat disingenuous for a school district to freely publish information such as name and home address in a student directory, or other student publication, and deny access to the same information in response to an open records request submitted by a sister school district attempting to fulfill its statutory functions. This is particularly true in light of the fact that Hazard Independent has apparently released the names of its students to Perry County but not their home addresses. It is the latter element that is critical to Perry County's evaluation of student enrollment. We are therefore not persuaded that the Family Educational Rights and Privacy Act precludes access to this information.
By the same token, we find unpersuasive Hazard Independent's reliance on KRS 61.878(1)(a), the privacy exception, to authorize nondisclosure of student names and addresses. That exception authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
"Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good," we apply the "comparative weighing of the antagonistic interest" mode of decision established by the
Kentucky Supreme Court in Board of Examiners v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 827 (1992). Because the requested information has been designated directory information, it is apparent that the privacy interests implicated are negligible. The public interest in insuring that the school districts comply with the terms of the nonresident contract and discharge their duties to verify enrollment and attendance of all school age children is, conversely, strongly substantiated. As in 03-ORD-120, we find that the public's interest in disclosure of records documenting district compliance and confirming student enrollment is superior to the privacy interests implicated. For this reason, we conclude that Hazard Independent's reliance on KRS 61.878(1)(a) was misplaced.
Nevertheless, we affirm Hazard Independent's denial of Perry County's request for tuition information on the basis of 20 U.S.C. § 1232g. In 98-ORD-162, this office affirmed the Bourbon County School District's denial of the Paris Independent School District's request for records pertaining to each student and "tuition fees, when fees were paid, and how much." At page 4 of that decision we concluded that records relating to tuition fees "is precisely the kind of information to which [FERPA] restricts access." Continuing, we observed:
Student education records, including records relating to tuition fees, are excluded from public inspection by the Family Educational Rights and Privacy Act, and implementing regulations, and the district risks termination of federal funding if it releases these records without the written consent of the students' parents. As this office noted in OAG 91-177:
OAG 91-177, p. 4. 20 U.S.C. § 1232g(a)(4)(A) requires that an education record directly relate to a student. This requirement is satisfied if a record is "associated in any manner with an identifiable student," Note, above at 84, regardless of whether an individual is identified by name. The records which [Paris Independent] requested directly relate to the students identified in [its] application. The requirement of the federal law is satisfied. The Bourbon County School District cannot release the records to [Paris Independent]. We affirm its denial of her request.
Because we conclude that FERPA authorizes nondisclosure of records relating to student tuition, we do not address Hazard Independent's alternative privacy argument. Consistent with the reasoning set forth above, we find that the Hazard Independent Schools violated the Open Records Act in denying the Perry County Public Schools' request for names and addresses of students residing in the Perry County school district but attending Hazard Independent Schools, but did not violate the Act in denying Perry County access to tuition records.
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.
Timothy Crawford317 North Main StreetMain at Center StreetsCorbin, KY 40701
Superintendent James FrancisHazard Independent Schools325 BroadwayHazard, KY 41701
Sam R. CollinsP.O. Drawer 1179Hazard, KY 41701
Footnotes
Footnotes
1 It is unclear what the legal distinction is between "addresses" and "911 addresses." We confine our analysis to addresses in the generic sense of the term.
2 The Family Educational Rights and Privacy Act.
3 See privacy analysis at page 8 of this decision.
4 In these open records decisions, the Attorney General dealt with the scope and application of FERPA and KFERPA 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.