Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Franklin County Public Schools violated the Open Records Act in denying Beth Whitt Combs' request to inspect a videotape recording of an incident that occurred on a Franklin County school bus on October 5, 2006, involving Ms. Combs' son. For the reasons that follow, we find that the Franklin County Public Schools did not violate the Act in denying the request.
On October 9, 2006, Ms. Combs submitted an e-mailed request to Monty E. Chance, Superintendent and official custodian of records, Franklin County Public Schools, to review a "bus video tape" taken on a school soccer trip on October 5, 2006, and which Ms. Combs believed involved an incident with her son and one or more other students on the bus.
By e-mail dated October 16, 2006, Superintendent Chance advised Ms. Combs that he had been out of state the past week and would forward her request to the Director of Transportation. However, in a subsequent communication to Ms. Combs, Superintendent Chance, by letter dated October 16, 2006, denied her request to view the videotape recording, advising:
I am in receipt of your email transmission dated October 9, 2006, and received in this office Monday, October 16, 2006, requesting access under the Open Records Act to review a videotape recording of a school bus. However, for the reasons set out below, your request is denied pursuant to KRS 61.878(1)(k) and (l).
The videotape being requested is determined to be an educational record of all those students being recorded thereon under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g et seq. because it contains the personally identifying information of those students. As such, FERPA prohibits the School District from disclosing this educational record without the prior written consent of the parents of those students being recorded thereon, which has not been provided. Additionally, KRS 61.878(1)(k) prohibits from disclosure "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " Therefore, since the School District is prohibited from disclosing the requested videotape under federal law pursuant to FERPA, the requested videotape is also exempted from disclosure under the Open Records Act pursuant to KRS 61.878(1)(k).
Similarly, the requested videotape is exempted from disclosure under KRS 61.878(1)(l), which exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Pursuant to the Kentucky Family Educational Rights and Privacy Act, Kentucky's state counterpart to FERPA codified at KRS 160.700 et seq. , the requested videotape is an educational record that cannot be disclosed without the prior written consent of the parents of those students recorded thereon, which has not been provided. Since the requested videotape is exempted from disclosure under state law, it is likewise exempted from disclosure under the Open Records Act pursuant to KRS 61.878(1)(l).
Subsequently, by letter dated December 4, 2006, Ms. Combs initiated the instant appeal stating that she felt the videotape was in no way an educational record and that she should be allowed to view the tape.
Turning to the substantive issue in this appeal, we conclude that the Franklin County Public Schools properly relied on KRS 61.878(1)(k) and 20 U.S.C. § 1232(g), the Federal Family Educational Rights and Privacy Act (FERPA), as well as KRS 61.878(1)(l) and KRS 160.700 et seq., the Kentucky Family Education Rights and Privacy Act (KFERPA), and 99-ORD-217, in denying Ms. Combs' request. 1
In 99-ORD-217, this office concluded 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, properly relied on KRS 61.878(1)(k) and KRS 61.878(1)(l) in denying disclosure. In that decision, the Attorney General examined FERPA and KFERPA. At pages 6 and 7 of that decision, this office explained:
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 in 99-ORD-217 that a videotape of student activities on a school bus was an education record within the scope of FERPA and KFERPA.
After receipt of notification of the appeal, Robert L. Chenoweth, legal counsel, Franklin County Public Schools, provided this office with a response to the issues raised in the appeal. Addressing the substantive issue, Mr. Chenoweth, citing 99-ORD-217 as dispositive of the instant issue, advised, in relevant part:
In this appeal there can be no doubting the requested videotape recording meets the two part definition of an educational record as defined by FERPA and KyFERPA. First, the videotape contains information directly related to students as it indicates the identity, conduct and activities of those students being recorded thereon. Secondly, the videotape is maintained by an educational institution, i. e., the Franklin County Public Schools. The videotape, therefore, to the extent it contains personally identifiable information of the students being recorded thereon, must be characterized as an educational record in the broader sense of the term. As such, having not obtained the prior written consent of the parents of the students contained thereon, the record is exempted from disclosure under federal and state law and likewise under the Open Records Act pursuant to KRS 61.878(1)(k) and (l). Ms. Combs' contention the requested videotape is not an education record within the parameters of FERPA and KyFERPA is clearly unfounded.
In a matter directly on point, the Office of the Attorney General previously determined a videotape recording of student activities on a school bus was an education record within the scope of FERPA and KyFERPA and, thus, exempted from disclosure under the Open Records Act pursuant to KRS 61.878(1)(k) and (l). See 99-ORD-217, supra. In that opinion, a parent, like Ms. Combs, had requested to inspect a videotape recording of an incident involving his son that occurred on a school bus. The attorney General opined that:
Simply put, the Attorney General found that allowing the parent to view the videotape would violate the privacy rights of other students aboard the bus thereby contravening the express purposes and provisions of FERPA and KyFERPA.
Similarly, allowing Ms. Combs to view the requested videotape recording would violate the privacy rights of the students recorded thereon in addition to her son. Thus, Ms. Combs is prohibited from viewing the requested videotape under federal and state law and likewise under the Open Records Act. Clearly, the opinion set forth in 99-ORD-217, supra, affirms the School District properly denied Ms. Combs access to the requested videotape pursuant to KRS 61.878(1)(k) and (l).
Accordingly, for the reasons set out above, we find that the Franklin County Public Schools properly denied Ms. Combs' request under authority of KRS 61.878(1)(k) and 20 U.S.C. § 1232(g), (FERPA), as well as KRS 61.878(1)(l) and KRS 160.700 et seq., (KFERPA), and 99-ORD-217.
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 KRS 61.878(l)(k) and (l) require public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation; and
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 It should be noted the Attorney General's conclusion the subject videotape was an educational record within the scope of FERPA was confirmed by the United States Department of Education's Family Compliance Office, the federal agency charged with enforcement and interpretation of FERPA. See 99-ORD-217, supra.