Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bracken County Board of Education violated the Kentucky Open Records Act in denying the request of Steven J. Farmer for copies of "all correspondence between Bracken District Juvenile Court and either the Office of Superintendent or Bracken Board, regarding U.S. Department of Education (#1228. (sic)." Although the Board committed a procedural violation of the Act by initially failing to cite the applicable statutory exception and provide a brief explanation of how the exception applies to the records withheld, as mandated by KRS 61.880(1), the Board belatedly complied with the Act in denying Mr. Farmer's request on the basis of 04-ORD-173.
By letter directed to Tony Johnson, "Bracken Board," on June 14, 2005, Mr. Farmer requested copies of the specified records. In an undated response, Bob Seiter Jr., Superintendent, Bracken County Schools, denied Mr. Farmer's request "[b]ased on the information given to me by Bracken County Middle School," without further elaboration. In a letter dated June 26, 2005, Mr. Farmer initiated this appeal from Mr. Seiter's denial of his request. Upon receiving notification of Mr. Farmer's appeal from this office, W. Kelly Caudill, attorney, responded on behalf of the Board by enclosing a copy of 04-ORD-173, a prior decision by this office "with regard to the Farmer/Bracken County Board of Education question."
Because the Board presumably still lacks conclusive proof of Mr. Farmer's paternity relative to N. F., and the records requested are properly characterized as "education records" in our view, the Board did not violate the Open Records Act in denying Mr. Farmer's request based upon the reasoning contained in 04-ORD-173.
As a public agency, the Bracken County Board of Education is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from the Board's initial response is any reference to the applicable statutory exception (s) and the requisite brief explanation of how the exception(s) applies. A public agency such as the Board must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has also observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c) ; KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In short, neither the initial response nor the supplemental response of the Board contains the specificity envisioned by KRS 61.880(1). From a procedural standpoint, the Board violated the Open Records Act in failing to comply with the mandatory terms of this provision. In responding to future requests, the Board should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 2
Turning to the substantive issue presented, the reasoning upon which 04-ORD-173 is premised appears to be equally applicable on the facts presented. As in 04-ORD-173, a copy of which is attached hereto and incorporated by reference, the Board risks forfeiture of federal funding not only by releasing "education records" to persons not entitled to receive such records, but also by denying parents access to their child's education records under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, commonly known as FERPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(k). 3 In addition, the Board is permitted to require legal certification denoting parenthood from the parent requesting access. 04-ORD-173, p. 3. By relying exclusively upon 04-ORD-173, the Board is presumably asserting that such verification is still lacking, albeit implicitly. Absent evidence to the contrary, this office must assume the truth of that assertion. That being the case, the remaining question is whether the requested correspondence falls within the definition of "education records" codified at 20 U.S.C. § 1232(g)(4)(A). 4
In OAG 91-177, the Attorney General noted:
[T]he term "education records" was intended to be broadly construed, and the exceptions . . . must be narrowly construed since the value of the [parents'] right of access and [students'] right of privacy "depreciates with every item that is excluded from the definition of 'education record.'" Note, "Federal Genesis of Comprehensive Protection of Student Education Rights: The Family Educational Rights and Privacy Act of 1974," 61 Iowa L. Rev. 74, 83 (1975).
Id., p. 4. Although the records at issue present a closer question than the records at issue in 04-ORD-173, correspondence between Bracken District Court and the Board or Superintendent relating to N. F. that is maintained by or on behalf of the Board falls within the expansive definition of education records in our view. Accordingly, the Board acted in compliance with state and federal law in declining to provide copies of any responsive records to Mr. Farmer absent conclusive proof of his paternity. To hold otherwise would undermine prior decisions of this office and be inconsistent with the underlying rationale of FERPA.
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 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 Although the Board implicitly relies upon the authorities cited in 04-ORD-173 on appeal, the Board should bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.
3 Among those records excluded from application of the Open Records Act are those identified at KRS 61.878(1)(k):
Public records or information the disclosure of which is prohibited by federal law or regulation
4 Education records are "those records that are (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution." For purposes of FERPA's state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700, et seq., or KFERPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the term education records is defined as those records, files, documents, and other materials containing "data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution. . . ." KRS 160.700(3)