Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Rowan County Board of Education violated the Kentucky Open Records Act in denying Jonathan D. Boggs' December 8, 2011, request, "sent on behalf of Ricky A. Barnes and Jennifer Barnes, the Step-Father and Mother of [C.P.], a student at Rowan County Middle School," to review the "video recording made on the afternoon school bus ride taken on or about November 30th on bus route 2002 depicting the altercation between [C.P.] and Mr. Louis." 1 Superintendent Marvin Moore promptly denied Mr. Boggs' request for the video recording described, citing the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. , and KRS 61.878(1)(k) and (l), pursuant to which FERPA and KyFERPA, respectively, are incorporated into the Open Records Act. In further support of the Board's position, Superintendent Moore relied upon Medley v. Board of Education Shelby County, 168 S.W.3d 398, 404 (Ky. App. 2004), 2 and prior decisions by this office, 3 namely 99-ORD-217, 07-ORD-005, and 07-ORD-258. Further, he asserted, "unlike documentary evidence where information relating to some students can be blocked out or removed while leaving intact the information relating to other students, the redaction of faces or other physically identifying characteristics of students depicted on the tape is not a realistic possibility as to the video you have requested." In sum, the Board's position was that provisions of FERPA and KyFERPA "relating specifically to protected educational records trump those general statutory provisions of the" Act, namely KRS 61.878(4), "relating to separation of exempt and non-exempt records." Mr. Boggs argued on appeal that "KRS 160.715 specifically allows a parent to review the educational records of their children." While this assertion is correct, as far as it goes, the instant appeal presents no basis to depart from 99-ORD-217 (adopted in 07-ORD-005), which, in short, validates the Board's position. Accordingly, this office affirms the Board's denial of Mr. Boggs' request based upon the reasoning contained therein.
Superintendent Moore initially advised Mr. Boggs that "a review of the surveillance video in question indicates that no incident was captured as described" in your written request. On appeal, the Board stated "there is no record in existence which is responsive to the request for a video depicting an altercation between a student and an employee. A nonexistent record cannot be produced for inspection nor copied and sent to a requester. " In order to confirm the accuracy of this assertion, the Attorney General asked the Board, under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to provide this office with a copy of the recording for purposes of in camera review. Legal counsel for the Board promptly complied. However, the surveillance video provided was filmed on December 1, 2011, rather than November 30, 2011; accordingly, this office sought clarification regarding the apparent discrepancy. As counsel explained, Mr. Boggs' client apparently referenced December 1 as the date of the alleged incident when he visited the "school bus garage to discuss with the transportation director an incident he alleged had occurred the previous afternoon (December 1)." According to counsel, the "transportation department then pulled the video from the previous afternoon (December 1) to be reviewed and retained." By December 8, the date on which Mr. Boggs made his written request, counsel explained, "the video from November 30 had already been over-written by new surveillance footage, and since his request stated 'on or about November 30th' the School District understood this to be a lack of information by Mr. Boggs as to which date the incident occurred," and thus it "relied on information previously obtained from the stepfather to ascertain that the request related to the afternoon of December 1."
As with "most school bus surveillance systems with which I am familiar," counsel further observed, "the tapes are over-written by new data within a couple of days if they are not pulled from the recorder and retained." 4 Because the stepfather did not mention the date of November 30 when he met with the transportation director on December 2, "the November 30 tape was never pulled, reviewed, or retained." A recording from November 30 "did not exist as of the date of Mr. Boggs' December 8 request," counsel noted, "and the recording which had been retained in conjunction with the stepfather's December 2 meeting with the transportation director" has been provided for this office to review. The December 1 recording "shows the student making a comment as he exits the bus to the effect that he would 'report' something to someone," the Board noted, "which supports that this was the date the student believed some 'reportable' incident had occurred[.]"
Although this office cannot reveal with any degree of detail the content of the December 1 recording, and makes no further comment or finding in that regard, it suffices to say for purposes of this appeal that a review of the recording confirms the Board's assertion that December 1 was the date on which the event in question apparently occurred, notwithstanding the differing characterizations thereof; accordingly, this office must respectfully disagree with the contention that a responsive surveillance video recording does not exist. 5 Analysis of the substantive legal argument(s) raised in support of the agency's denial is therefore necessary. Existing legal precedents, 99-ORD-217 and 07-ORD-205 in particular, which are directly on point, validate the Board's position that such a recording is protected under FERPA and KyFERPA.
Among those records excluded from application of the Open Records Act in the absence of a court order are "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation." KRS 61.878(1)(k) . Both FERPA, 6 and the implementing regulations codified at 34 C.F.R. § 99 et seq. , are incorporated into the Open Records Act by the express language of this provision. In conjunction with its state counterpart, KFERPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 7 FERPA regulates access to "education records" like those at issue; § 1232g(a)(4)(A) defines this term 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 or by a person acting for such agency or institution." 8 More specifically, FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of prior written consent from a parent or eligible student. FERPA is also intended to ensure that parents of students, and students themselves, if over eighteen years of age, have access to their education records.
In other words, the goal of this legislation was "'to end denial of access to parents and students, and to prevent violations of student and family privacy rights by the release of unscreened records to third parties without parental or student consent.'" 99-ORD-217, p. 5 (citation omitted). 9 To that end, the term "education records" has been and was "intended to be broadly construed, and the exceptions . . . must be narrowly construed since the value of [the parents'] right of access and [students'] right of privacy "depreciates with every item that is excluded from the definition of 'education record.'" OAG 91-177, p. 4 (citation omitted); 98-ORD-162. With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), which are not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two-part test described above. Both the Kentucky Supreme Court and this office have recognized that FERPA operates to bar disclosure of education records, as that term is defined in federal law, and that FERPA is incorporated into the Open Records Act by KRS 61.878(1)(k). Hardin County Schools v. Foster, 40 S.W.3d 865 (Ky. 2001); 99-ORD-217, inter alia .
In 99-ORD-217, the Attorney General concluded that a videotape of student activities "from inside" a school bus was an education record within the scope of the FERPA, noting that our conclusion was confirmed by the United States Department of Education's Family Policy Compliance, the federal agency charged with interpreting and enforcing FERPA. The Attorney General subsequently reaffirmed this position relative to a videotape "from inside" of a school bus and an incident involving the requester's son. 07-ORD-005. See also 07-ORD-258. During the interim, the fundamental proposition of 99-ORD-217 was affirmed by the Kentucky Court of Appeals in Medley v. Board of Education of Shelby County , above. Assessing the propriety of a school district's denial of a teacher's request to inspect a videotape "from inside" her classroom, the Court "agree[d] the videotapes [used for monitoring that would reveal the identities of students] are, in fact, 'education records' . . . ." Medley at 404.
The following excerpt from 99-ORD-217, a copy of which is attached hereto and incorporated by reference, 10 applies with equal force in this case:
The appeal before us implicates both of the purposes for which the federal and state laws were enacted: to ensure the parents' right of access to their child's education records as well as to ensure the parents' right to nondisclosure of their child's education records to third parties. The surveillance tape, which, as noted, must be characterized as an education record, 11 documents the conduct and activities of the Bennetts' [Barnes'] son. However, the tape also documents the conduct and activities of numerous other students on the bus, including some students who presumably were not even involved in the incident. In order to honor the Bennetts' [Barnes'] right to inspect and review education records related to their son, the Bell [Rowan] County School System would be compelled to compromise the corresponding rights of the parents of the other students on the bus, and the students themselves, in the nonrelease of their education records. Redaction of the faces, or other physically identifying characteristics of the other students, which is required by law when feasible, 12 is apparently not a realistic possibility in this appeal. We assume that redaction would be made difficult, if not impossible, by the number of students on the bus, the constant movement of the students, and the likelihood that some students could be identified by height, weight, hair color, or manner of dress.
99-ORD-217, p. 9; 07-ORD-205.
As in 99-ORD-217, for the reasons outlined above, this office must "affirm the [Rowan] County Public Schools' denial of [Mr. Boggs'] request on the [bases] of KRS 61.878(1)(k) and 20 U.S.C. § 1232g(b)(1), and corresponding provisions in state law." Id. In light of this determination, analysis of the Board's alternative basis for denial (absence of a signed release by the biological parent), belatedly invoked on appeal, is unwarranted.
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:
Jonathan D. BoggsMarvin MooreGrant R. Chenoweth
Footnotes
Footnotes
1 Although Mr. Boggs also requested "[a]ny and all documentation, reports, and/or statements regarding the above," and the Board acknowledged in responding to his appeal that its original response failed to "specifically reference" this category of records, generally denying his request based on FERPA instead, the Board clarified that FERPA was also being invoked as to "some investigative notes regarding the alleged incident," which it also "withheld as work product as recognized in Duffy v. Wilson, 289 S.W.3d 555 (Ky. 2009)." On appeal, Mr. Boggs focused on the denial of his request for the specified video recording; accordingly, this office makes no finding as to any existing notes, etc. also responsive to his original request, but does note that records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act even assuming that FERPA does not apply. This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3). See 07-ORD-147, pp. 8-11, a copy of which is attached hereto and incorporated by reference, for application of the work product doctrine in the context of an Open Records dispute generally.
2 In Medley , the Court did not ratify the ultimate holding of 99-ORD-217 and the circuit court opinion, declaring instead that under an exception to FERPA, the requester, Ms. Medley, "should not be considered as a 'member of the public,' in assessing the propriety of agency denial, but should be judged in light of her position as a teacher" in whose classroom the videotape was made. Id. at 404. However, the Court did affirm the position that videotape recordings of student activities constitute "education records" within the meaning of FERPA.
3 Superintendent Moore correctly noted that 11-ORD-106, which did not "establish a rule of general application," but was expressly restricted to its unique facts, is not controlling here. Rather, 11-ORD-106, as noted in the decision, is distinguishable from 99-ORD-217, and, by logical extension, the facts presented here.
4 This office has confirmed with the Kentucky Department for Libraries and Archives that such video recordings are not included on the Public School District Records Retention Schedule nor do they fall within any records series identified on the Local Government General Records Schedule. KDLA advised that revisions to the former schedule are underway and it will consider adding a new series to specifically address video recordings from school buses; however, the retention period will more than likely be brief.
5 For the analysis generally employed when a public agency denies a request based on the nonexistence of the record(s) in dispute, this office refers the parties to, for example, 07-ORD-188 and 11-ORD-209. See also 11-ORD-037; 11-ORD-091; compare 11-ORD-074.
6 More specifically, § 1232g(a)(1)(A), the "exception" to the exception, provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.. . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
Conversely, § 1232g(b)(1) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (1) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to [specified individuals under specified conditions listed at (b)(1)(A)-(J)].
7 KRS 61.878(1)(l) authorizes public agencies to withhold public records or information "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
8 As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997).
9 In 99-ORD-217, this office found it "reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act, are intended to serve these same purposes." Id., p. 8.
10 A copy of 07-ORD-205, which relies extensively upon 99-ORD-217, is also attached hereto and incorporated by reference.
11 In 99-ORD-217, this office noted that our conclusion "was confirmed by Ellen Campbell, family policy analyst with the U.S. Department of Education's Family Policy Compliance Office, the federal agency charged with enforcement and interpretation of FERPA, in a conversation with the undersigned that occurred on November 23, 1999." This office recently confirmed in a telephone conversation with a representative of the Compliance Office that its position regarding this issue remains the same.
12 See 34 C.F.R. § 99.12(a) ("If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student"); see 95-ORD-55.