Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this is whether the Russell County Board of Education violated the Open Records Act in the disposition of Leslie Leon Scott's May 29, 2009, requests for copies of education records of L. H. S. and L. S. S. 1 For the reasons that follow, we find no substantive violation of the Act, although a procedural violation was committed in the Board's initial response.
In Mr. Scott's two May 29 requests, he stated that he was the "natural biological father" of L. H. S. and L. S. S. and was an inmate at the Kentucky State Reformatory, and requested as to each child copies of the following:
[A]ny and all records and files pertaining to his attendance, grades, disciplinary reports, medical incidents, teacher's notes plus parent notes and absentee excuses. The time period of said records are [sic] to be from initial enrollment/1st grade through the present date of this writing. I wish the complete contents of his cumulative file. This shall include all pertinent information residing on paper or electronic medium.
The record before us does not reflect to whom or to what address these requests were sent, or when they were received.
On June 18, 2009, Mr. Scott addressed a follow-up letter to the Russell County Board of Education. It is reasonable to suppose that this letter crossed in the mail with the Board's June 19, 2009, response from Johnna Dalton, Director of Pupil Personnel, which stated simply: "Enclosed is the requested information that I have access to." This constituted a procedural violation of the Act insofar as the Board failed to comply with KRS 61.872(4), which requires the recipient of the application to identify the custodian of the records if they are not in the addressee's custody or control. Ms. Dalton's letter did not state what additional records were not being provided or identify their custodian.
Mr. Scott initiated this appeal on July 6, 2009, complaining that he had received copies of records for only the 2008-2009 school year. On July 20, 2009, attorney Kevin S. Shearer replied on behalf of the Board:
This letter is to advise that the records requested by Appellant Leslie Leon Scott are exempt pursuant to KRS 61.878 (1) (L) [sic]. The records requested are confidential and restricted due to the age of the child. The Russell County Board of Education has no information that the statement purported by appellant that he is the biological father is accurate. The appellant has recourse for such requests by and through the Circuit or Family Court where the child resides if he is the biological father.
KRS 61.878(1)(l) exempts from disclosure records "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Mr. Shearer does not identify which enactment of the General Assembly makes education records confidential, nor does he invoke KRS 61.878(1)(k), which exempts records "the disclosure of which is prohibited by federal law." Nonetheless, as we found in 07-ORD-258, "significant policy implications compel this office to undertake a substantive analysis" of the issues presented by the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, and its state counterpart, KRS 160.700 et seq.
We believe the records requested by Mr. Scott are properly characterized as "education records" within the meaning of 20 U.S.C. § 1232g(a)(4)(A). As we concluded in 04-ORD-173 (copy attached), access to education records may be denied when the applicant has failed to provide legal certification that he is the parent of the pupil in question. Therefore, the Board may properly require Mr. Scott to provide such certification before producing the requested records. 2
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 L. H. S. and L. S. S. are identified by name in Mr. Scott's appeal and throughout his appended correspondence. In deference to their privacy interests, we identify them by their initials.
2 Since we are solely concerned with open records issues, we express no opinion as to whether the Board violated any law by initially providing some of the records to Mr. Scott without legal certification of his parental status. As regards the Open Records Act, the Board was entitled to require such certification, and if it mistakenly failed to do so at first, we see "no reason to compound the error by questioning its invocation" of a specific exemption now. 09-ORD-087.