Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Jefferson County Public Schools violated provisions of KRS 61.870 to 61.884 in denying WLKY-TV's March 3, 2011, request for a copy of "the bus surveillance tape from the bus from Stopher Elementary, which captured the Bus Driver being assaulted by parents on Tuesday, March 1, 2011." In so holding, we do not establish a rule of general application requiring release of all videotapes of student activities generated by and for school districts or imposing a correlative duty to redact identifying images, but limit the decision to the unique facts presented.
On March 24, 2011, 1 JCPS notified WLKY that "[b]ecause the videotape is an educational record, it is confidential under the Family Educational Rights and Privacy Act ("FERPA"), 20 USC 1232g et seq. and KRS 160.720 . . . prohibit[ing] the School District from disclosing this educational record without the prior written consent of the parents of the students which has not been provided." These confidentiality provisions, JCPS correctly observed, are incorporated into Kentucky's Open Records Act by operation of KRS 61.878(1)(k) and (l). 2 Approximately one month later, WLKY initiated this appeal, asserting that WLKY is "not seeking the identity of students" and that neither FERPA nor KFERPA prohibit the disclosure of information that does not identify students. Continuing, the television station observed:
Kentucky open records law explicitly instructs agencies to separate information that may be withheld from public disclosure and make the nonexcepted material available. Accordingly, [JCPS] must obscure the students' information and produce the video.
WLKY questioned the adequacy of JCPS's response, generally, noting that "in failing to address [the station's] repeated request for a copy of the video that does not reveal student identities, [JCPS] violated . . . KRS 61.880(1) . . . [, and] in failing to acknowledge the obligation to redact imposed by KRS 61.878(4), [JCPS] has made clear that it has not and cannot satisfy its burden of proving that the requested information may be withheld. "
In supplemental correspondence directed to this office after WLKY initiated this appeal, JCPS cited a number of open records decisions recognizing that videotapes of student activities generated by a school district constitute "education record[s] within the scope of FERPA." Additionally, JCPS cited Medley v. Board of Education of Shelby County, 168 S.W.3d 398, 404 (Ky. App. 2004), affirming the position that videotapes of student activities are education records as defined in FERPA. It was the district's position that state law restricting access to education records is broader than federal law insofar as:
KFERPA prohibits the release of all education records other than directory information, whether or not identifiable, without the consent of the parent or eligible student. In contrast, FERPA requires the consent of the parent or eligible student before an educational agency discloses personally identifiable information from the student's education records. 34 CFR 99.30. Therefore, under KFERPA the district is prohibited from releasing the videotape even if the faces of the student passengers and the student [whose mother was involved in the altercation] are blurred and even if the student's identity is not easily traceable due to media reports and the identification of the student's mother by name in those reports.
For this reason, JCPS concluded, KFERPA "prohibits the release of the requested videotape even if the faces of the student passengers and the student [whose mother was involved in the altercation] are blurred and even if the student's identity is not easily traceable due to media reports and the identification of the student's mother by name in those reports." 3 Alternatively, and for the first time, JCPS argued that the videotape is shielded from disclosure by KRS 61.878(1)(h) because it "is part of an ongoing criminal case. " Given the particular facts underlying this appeal, we find neither of these arguments persuasive. 4
Our research discloses a conflict among the jurisdictions as to the public's right of access to videotapes of student activities, and more particularly, school bus surveillance videotapes. At least two jurisdictions have determined that video surveillance tapes are not education records for purposes of FERPA analysis and must be disclosed. Rome City School District v. Grifasi, 806 NYS 2d 381 (NY Sup.Ct. 2005); Lindeman v. Kelso School District, 172 P. 3d 329 (Wash. 2007). These opinions were premised on the view that surveillance videotapes "serve as a means of maintaining security and safety on the school buses . . . [and] differ significantly from the type of record that schools maintain in students' personal files." Lindeman at 331. Such videotapes are "not a student record. [They are] surveillance tape [s]." Id. at 332. Conversely, in WFTV, Inc. v. School Board of Seminole, 874 S.W.2d 48 (Fla. 5th DCA, 2004), a Florida court reached the opposite conclusion, determining that a school bus surveillance videotape was an education record when it was relevant to a student disciplinary question and was filed and retained by the Board of Education. Because the tape was both exempt from the state's Public Records Act and confidential under F.S.A. § 228.093 (now F.S.A. § 1002.22), the court held that disclosure of a redacted copy of the videotape was impermissible. The Family Policy Compliance Office of the United States Department of Education, the federal agency charged with interpretation and enforcement of FERPA, has opined that a parent may only inspect a surveillance videotape showing his or her child if no other students appeared in the tape, 5 and informally advised that a videotape is only an education record for the students "directly related" to its subject, such as a fight.
Kentucky's courts have concluded that videotapes of student activities "are, in fact, education records." Medley, above at 404. In so holding, the court agreed with the analysis found in prior open records decisions issued by this office determining that school bus surveillance tapes are "education records" within the meaning of FERPA and KFERPA. Assuming that the activities recorded in a classroom and a school bus can properly be equated, we are spared debate on this issue.
Neither the courts, nor this office, have addressed the application of FERPA and KFERPA to the videotape of an altercation between two adults on a school bus. These unique facts compel a different outcome than that which we reached in, for example, 99-ORD-217. Because the conduct at issue in the disputed videotape does not focus on students, or student activities, we do not believe the videotape can be withheld in its entirety as an "education record." Instead, we find that it is a public record in which there is a strongly substantiated public interest predicated on "the public's 'right to know' . . . whether public servants are indeed serving the public . . . ." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327-328 (Ky. 1992). It is the content of the videotape that is determinative. Disclosure of the videotape will enable the public to ascertain how the JCPS bus driver responded to the alleged "assault by parents." Redaction, or blurring, of the faces of the students on the bus will protect their privacy interest. That interest, although recognized in both state and federal law, does not override the public's right to know that its agencies and their employees are "properly execut[ing] their statutory functions," in this case, insuring the safety and protection of the students who have been entrusted with their care. Here it can be preserved by masking the students' identities.
As noted above, in reaching this decision we do not establish a rule of general application relative to JCPS or any other school district. Our conclusion is limited to the facts presented. It should not be construed to impose a requirement on school districts to disclose school bus videotapes after redacting or blurring the faces of students who appear in the videotapes upon receipt of an open records request. We do not find persuasive JCPS's argument that KFERPA is broader than FERPA and therefore precludes disclosure of redacted videotapes because the videotapes, as "education records," are both exempt from the Open Records Act and confidential under KFERPA. Neither Kentucky's courts, nor this office, have adopted this view, and we are not prepared to depart from precedent based on the opinion of a foreign state court. The videotape at issue, though it is an "education record" for purposes of FERPA or KFERPA analysis, is subject to partial disclosure insofar as it captures an altercation between a parent and a bus driver that is not protected by FERPA or KFERPA. We give deference to the privacy interests of the students in the appeal before us, whose identities may properly be masked, but leave the question of redaction of surveillance videotapes generally for another day.
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.
Distributed to:
Courtenay O'ConnorBen JackeyRosemary Miller
Footnotes
Footnotes
1 JCPS offers no explanation for the delay in issuing a written response to WLKY's request. On March 3, JCPS emailed WLKY that "any records request for [the videotape] would have to be made through [the] ORR process." Clearly, its March 24 response exceeded the three business day statutory deadline codified at KRS 61.880(1), and its failure to adhere to that deadline constituted a violation of that provision.
2 KRS 61.878(1)(k) and (l) authorize public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 Inasmuch as the parent's name has already been disclosed, we see no way the identity of the child can be protected even if his face is blurred or the tape is withheld in its entirety.
4 JCPS offers no proof that law enforcement or prosecutorial authorities consider the videotape primary evidence or that they have requested that the videotape be withheld. Compare, 11-ORD-113. Nor does it offer any proof of harm from premature disclosure of the videotape. Indeed, it merely suggests that disclosure "may harm the pending criminal case. " Given the speculative nature of this response, and the absence of supporting proof, we cannot conclude that JCPS satisfied its statutorily assigned burden of proof relative to the invocation of KRS 61.878(1)(h).
5 Letter re: Berkeley School District (October 31, 2003).