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 Danville Independent School System violated the Open Records Act in denying Kevin L. Nesbitt's request for "the final completed rating forms for the applicants" to the 2007 Governor's Scholars Program and "a copy of all written guidelines used by the evaluators in determining scoring on the rating forms."
In a March 21, 2007, letter addressed to David Davis, Danville Independent Schools, Kevin L. Nesbitt made the following request:
It is my understanding that you are the custodian of the 2007 Governor's Scholars Program Selection Rating Forms. As such, I would request from you the final completed rating forms for the applicants to the 2007 program. This request is made under the terms of KRS 61.870 et seq. It is my understanding that these forms were completed with each applicant being given a number such that one cannot identify any student and have already been compiled and distributed. I would also request a copy of all written guidelines used by the evaluators in determining scoring on the rating forms. I agree to be responsible for the reasonable costs of providing these copies.
By letter dated March 27, 2007, H. Vincent Pennington, III, counsel for the Board of Education, Danville Independent Schools, denied Mr. Nesbitt's request, advising him that the requested records were exempt from disclosure, under authority of KRS 61.878(1)(g), (j) and KRS 160.700 - 160.730, in tandem with KRS 61.878(1)(k) 1. In his response, Mr. Pennington explained, in relevant part:
KRS 61.878(1)(g) exempts from the requirements of the Open Records Act "[t]est questions, scoring keys, and other examination data used to administer a licensing exam, examination for employment, or academic examination before the exam is given or if it is to be given again." Sub-section (1)(j) of the statute exempts "[p]reliminary recommendations, and preliminary memorandum in which opinions are expressed or policies formulated or recommended. " The examination process for admission to the GSP [Governor's Scholars Program] is administered each year; obviously, then, the school district must diligently defend the integrity of the application process. Furthermore, the documents you seek to discover do not record or reflect a final decision of a public agency but rather constitute "preliminary recommendations and preliminary memorandum in which opinions are expressed or formulated or recommended, " which are exempt from production under KRS 61.878(1)(j).
?
Finally, in regard to your request for the final completed rating forms for all GSP applicants, this request is barred by KRS 61.878(1)(k). If the school district granted your request and provided the rating forms for all applicants, then you would know (and all other citizens would have the right to know) the range of the examination scores of the five applicants who were ultimately selected for the program. Although it would not necessarily be clear which score was earned by each of the five successful applicants, you (and, potentially the public at large) would know a range of scores within which each of the five applicants fall. The Kentucky Family Education Rights and Privacy Act which is codified at KRS 160.700 - KRS 160.730, precludes the school district from disclosing any portion of the educational record of a student other than "directory information," as defined in KRS 160.700(1). Because the disclosure of the completed rating forms would violate the Kentucky Family Education Rights and Privacy Act, the information is exempt from production under KRS 61.878(1)(k) .
As a result of the denial of his request, Mr. Nesbitt initiated the instant appeal.
We affirm the school system's denial of Mr. Nesbitt's request for the final completed rating forms for the applicants to the 2007 Governor's Scholars Program on the basis of KRS 160.700 - KRS 160.730, the Kentucky Family Education Rights and Privacy Act (KFERPA). That statute and its federal counterpart, 20 U.S.C. § 1232(g), the Federal Family Education Rights and Privacy Act (FERPA), regulate access to "education records." That term is defined at 20 USCA § 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 USCA § 1232(4)(B)(i) - (iv), and not relevant here, 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, KRS 160.700(3), defines the term "education record" as:
[D]ata and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
It too contains four exclusions which basically track the language of the federal exclusions, also not relevant here, and it too is intended to be inclusive.
This office has consistently recognized that student education records are excluded from public inspection by operation of the Family Educational Rights and Privacy Act, 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k), and its state counterpart, KRS 160.700 et seq., which is incorporated into the Open Records Act by KRS 61.878(1)(l), which regulate access to a student's "education records." 96-ORD-233; 95-ORD-55. These laws are aimed at preventing violation of student and family privacy rights by providing for the termination of federal funds to agencies or institutions which release student education records (or personally identifiable information contained therein) without the written consent of the student's parents.
There can be little doubt that a record, or portion of a school record, such as the final completed rating forms for the applicants to the 2007 Governor's Scholars Program fall within the scope of an "education record," as defined by FERPA and KFERPA set out above, and must be excluded from public inspection. It is a record of the student's performance which contains information directly related to a particular student in attendance, and is maintained by an educational agency or institution. It contains information of the student's academic achievement, student profile, student writing entry and teacher recommendations. 2 Under these circumstances, we conclude that the rating forms at issue constitute an "education record," maintained by the school as part of a student's educational activity. Accordingly, we conclude that the school system properly denied access to these records at issue, under authority of KRS 160.700 et seq. (KFERPA) and 20 USC § 1232g (FERPA).
We address next the denial of the request for a copy of all written guidelines used by the evaluators in determining scoring on the rating forms.
KRS 61.878(1)(g) authorizes the nondisclosure of:
Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the examination is given or if it is to be given again.
In 04-ORD-108, p. 8-9, this office addressed the application of KRS 61.878(1)(g) , stating:
In construing this provision, the Attorney General has twice held that public agencies may properly withhold records containing rating and scoring procedures for hiring and reclassification. OAG 92-80; 01-ORD-20. In OAG 92-80, we reasoned that the prohibition on release of the rating scale was "prompted by a concern that candidates who have been afforded access to [it] will be given an unfair advantage in the application process, " characterizing the rating scale as an "inactive examination." We extended the logic of that decision to the point factor system utilized by LFUCG in the development of its compensation system in 01-ORD-20.
In OAG 92-80, the Attorney General upheld the Jefferson County Division of Human Resources' denial of a request for a "Training and Experience Rating Score" used in the hiring process. At page 4 of that decision, we noted that the prohibition on release of a rating scale "is prompted by a concern that candidates who have been afforded access to [it] will be given an unfair advantage in the application process. " We concluded:
While this Office has never had occasion to rule on the precise issue raised in this appeal, it is our opinion that the rating scale, which can be characterized as an inactive examination, falls squarely within the parameters of the exception to Open Records codified at KRS 61.878(1)[(g)]. This provision has been the subject of three previous opinions of this Office, none of which are dispositive of this appeal. However, in both OAG 86-2 and OAG 87-56, we recognized that test questions, which will be used again, are excluded from public inspection. Whether classified as a "scoring key" or "other examination data," we believe that the training and experience rating scale was properly withheld pursuant to KRS 61.878(1)[(g)].
OAG 92-80, p. 4. We find that the logic of these decisions extends to the instant appeal inasmuch as disclosure of the written guidelines used by the evaluators in their annual process for determining scoring on the rating forms would give an unfair advantage to GSP applicants who were afforded access. Accordingly, we conclude that the school system properly denied access to the written guidelines under authority of KRS 61.878(1)(g). 04-ORD-108; OAG 92-80.
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 This appears to be a miscite, as KRS 61.878(1)(k) requires public agencies to withhold: "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." Since the records were withheld from disclosure under authority of a state statute, the applicable provision would be KRS 61.878(1)(l), which requires public agencies to withhold: "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 Although the school system denied Mr. Nesbitt's request, it provided him with a 40-page document published by the GSP entitled "Governor's Scholars Program Selection Process - - Helpful Hints," which describes the GSP program and the application process in great detail, and includes a blank rating or scoring sheet form that illustrates how applications are scored. A copy of this document and rating form was provided by the parties for our review.