Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Todd County Board of Education properly relied on KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. 1232g(b)(1) and KRS 160.700 into the Open Records Act, in denying Joe R. McCrary's undated request for a copy of "the attendance files for the 6th and 8th grades at Trenton Elementary School (Alvis Rochelle, principal) for the date of 29 August, 1980 that reveal whether Susan Andrea McCrary was in the 8th grade class on that date and whether Laura Kathleen McCrary was present in her 6th grade class on the 29th of August, 1980." The federal Family Educational Rights and Privacy Act, and its state counterpart, preclude disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent, and has been construed by this office to extend to attendance records. See, 00-ORD-148; 00-ORD-155; 01-ORD-3 (enclosed) . Pursuant to 20 U.S.C. 1232g(d) "whenever a student has attained eighteen years of age, or is attending an institution of post secondary education, the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student." (Copy enclosed. ) The requested educational records are nearly thirty years old and relate to individuals who have attained eighteen years of age. As the Todd County Board of Education correctly notes, Mr. McCrary presents no proof of consent executed by either of these individuals, Susan Andrea McCrary or Laura Kathleen McCrary. Mr. McCrary is therefore foreclosed from access to these records under FERPA and KFERPA, as those statutes are incorporated into the Open Records Act.
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.
Joe R. McCrary, # 187420-1BL6
Bruce Gray
Harold M. Johns