Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kenton County Public Schools violated the Open Records Act in the disposition of Darryl Denham's February 16, 2012, request for records relating to his son, Sam Denham, a student at Woodland Middle School who committed suicide in October 2011. Specifically, Mr. Denham requested records in the possession of the district, and Woodland Middle School, identified as follows:
1. Sam's school records, academic records, medical records, psychological records, and counseling records;
2. Emails, correspondence, notes, files, press statements, and other records regarding Sam Denham;
3. [District] policies regarding complaints, investigations, prevention, or prohibition of bullying, harassment, or sexual harassment of students;
4. [District] statistics [on] incidence[s] of receiving complaints and conducting investigations of bullying, harassment, or sexual harassment of students . . .;
5. [District] policies regarding training students, parents, or school personnel about complaints, investigations, prevention, or prohibition of bullying, harassment, or sexual harassment of student . . . [.] 1
The district promptly responded to Mr. Denham's request reminding him that it had previously honored nearly identical requests, providing him with available statistics, agreeing to provide him with responsive policies, and advising him that no additional public records were located. Having propounded questions to both Mr. Denham and the district pursuant to KRS 61.880(2)(c), and reviewed the extensive record on appeal, we find that this dispute focuses on three records sets implicated by the February 16 request: (1) Principal Eric Morwessel's file relating to Sam Denham or his death; (2) student letters written to the Denhams after Sam's death; and (3) counselor notes. Although the district cannot produce records that never existed or no longer exist, its denial of Mr. Denham's request, as it relates to these records sets, raises records management issues. Any responsive records that are still recoverable must be disclosed to Mr. Denham.
Principal's file
The record on appeal is inconclusive as to the existence of a file relating to Sam or his death maintained by Mr. Morwessel. Mr. Denham asserts that in mid-October he met with Mr. Morwessel and observed a file "in his possession at that time . . . [that] contained complaints that were made about bullying, harassment, and physical assault" directed at his son, Sam, "while he was at school." The district responds that Mr. Morwessel "may have had his own personal folder relating to Sam Denham's death[, but n]o such file exists on school property." The district therefore maintains that the file "is not and was not owned, used, prepared or possessed by the district, and would not be a public record according to KRS 61.870."
Student letters
With reference to letters written by students to the Denhams after Sam's death, Mr. Denham asserts that, after submitting a number of requests over a two month period, he was advised that "the letters were either given back to the students" if signed, or shredded if not signed, "since they contained 'such personal information.'" The district acknowledges that letters were prepared "in a single class" and "turned over to the counselors at Woodland as part of the crisis response." The district confirms that the "letters were destroyed," but maintains that they "were never public records open to inspection or copying." It is the district's position that the "letters were student work/therapy assigned by a teacher" and that their disclosure would have been prohibited by the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, if they still existed.
Counselor records
Notwithstanding Mr. Denham's assertion that an employee or employees at Woodland Middle School advised him that "the [counselor] records were sent to Central Office" and that he "contacted Central Office and [was] told the counselor records were there, but [that he] could not have them due to privacy concerns," the district asserts that no counselor notes can be found. The district explains:
[I]f a counselor referred Mr. Denham to the board office for Sam's records, it was a general referral, because after his death, Sam Denham was no longer a student and the counselor believed central office would handle such matters. Any such referral was not specific to counselor notes.
Since Mr. Denham contested this claim, 2 the district has provided statements from the school counselor, and two central office employees, in which they dispute Mr. Denham's statement.
Analysis
As noted, the record before us does not conclusively establish the existence of a file relating to Sam's death maintained by Mr. Morwessel. 3 If, however, such a file exists, or once existed, we disagree with the district's assertion that it was not a public record. That term is broadly defined at KRS 61.870(2) as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency. " It applies to all records, regardless of where they are housed, that are held at the instance of, and on behalf of, the public agency, here the Kenton County Public Schools. Accord 11-ORD-105. "The issue of a record's status as public or nonpublic turns on the record's nature and purpose, not its location." 08-ORD-253, p. 3.
The district's claim that, if it existed, the disputed file was Mr. Morwessel's "personal" record is legally unsupportable. We reject the notion that a school official, responding in his official capacity to the death of a student enrolled in his school, under circumstances that may have been related to incidents occurring in that school, generates "personal" records relating to that student's death. The district's argument is contrary to the position, frequently recognized in open records decisions of this office, that "[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office, and not his private property." 07-ORD-020, p. 4, citing 76 C.J.S. Records § 2; see also,
Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011). In dealing with incidents of bullying involving Sam Denham, or Sam's death, Mr. Morwessel was not acting in his personal capacity and, if he gathered or generated records relating to Sam in a file, that file was not his "personal" record. If it exists, or existed, it is or was a public record subject to the general requirements of the Open Records Act and the particular requirements of the Family Educational Rights and Privacy Act (FERPA), 4 as well as regulations governing records management.
The same laws govern maintenance, retention, and disclosure of letters prepared by students for the Denhams after Sam's death. As noted, the district characterizes these records as "student work/therapy, " asserting that they were not public records and not subject to the Open Records Act, FERPA, or records retention requirements. We disagree. In
Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), the U.S. Supreme Court addressed the issue of peer grading of student assignments and determined that, in general, student assignments are not education records for purposes of FERPA analysis because they are not "maintained" by an educational agency or institution or by "a person acting for" an educational agency or institution. Peer grading of student assignments, the Court concluded, does not violate FERPA. The Court reasoned that "'[m]aintain' suggests FERPA records will be kept in a file in a school's record room or on a secure database" and that the phrase "'a person acting for' . . . connotes agents of the school."
While the student letters at issue in this appeal may not have originated as education records subject to open records, FERPA, and record retention requirements, they became "education records," subject to each of these laws, when they were "turned over to the counselors at Woodland as part of the crisis response." 5 Certainly, at this juncture, the letters were "maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U.S.C. § 1232g(a)(4)(A). Inasmuch as the letters directly related to Sam Denham, and were maintained by an educational institution or agency, Mr. Denham was entitled to obtain copies of them. He was unable to do so because the letters were shredded.
It is the opinion of this office that the district lacked legal authority to shred the letters. Destruction of public records is governed by state law and regulation. Specifically, KRS 171.420(3) assigns the duty to "review and approve schedules for retention and destruction of records" and "determine questions which relate to destruction of public records" to the Archives and Records Commission, established under authority of KRS 171.420(1). That statute operates in tandem with 725 KAR 1:061 which incorporates each of the retention schedules, by reference, into administrative regulation. Whatever the rationale supporting the district's decision to shred the student letters, its actions were inconsistent with KRS 61.8715, recognizing "an essential relationship between the intent [of the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ."
The record on appeal is also inconclusive as to the existence of counselor notes relating to Sam Denham. As noted, Mr. Denham asserts that a middle school employee and a Central Office employee advised him that "counselor records" were transferred to Central Office after Sam's death. The district disputes Mr. Denham's assertion suggesting that, at most, the employees "general[ly] referred" him to Central Office and that their referral "was not specific to counselor's notes." The only tangible proof of the existence of counselor's notes in the record on appeal is the October 2010 email exchange between Mrs. Denham and Mr. Morwessel, a copy of which was forwarded to the school's counselor, in which Mr. Morwessel assured Mrs. Denham that the counselor was "following up on much of this . . . ." The record is silent on whether the counselor memorialized her "follow up" in writing.
Pursuant to KRS 158.148(4) each local board of education is "responsible for formulating a code of acceptable behavior and discipline to apply to the students in each school." That code must identify "the type of behavior expected from each student, the consequences of failure to obey the standards, and the importance of the standards to the maintenance of a safe learning environment . . . ." KRS 158.148(4)(b). The Kenton County Public Board of Education has formulated such a code. A copy of its "Code of Acceptable Behavior and Discipline" can be accessed at http://www.kenton.k12.ky.us/docs/Student% 20Code%20of%20Conduct.pdf. Neither KRS 158.148(4), nor the district's code, mandate the creation of records documenting complaints of bullying or harassment or records documenting the school or district's response to those complaints.
While "a statute, regulation, or case law directing the creation of the requested record," or tangible proof of the record's creation, establishes a rebuttable presumption of the record's existence, no statute, regulation or case law requires the creation of counselor notes. The proof Mr. Denham presents, although probative of the issue, is not sufficient to overcome the district's claim that counselor notes cannot be found. If counselor notes exist, the Denhams are clearly entitled to them under FERPA. If counselor notes never existed, no such right could or would attach. If counselor notes once existed but were prematurely destroyed, the district's actions would again abridge the laws governing records access and records management. The inconclusive record on appeal precludes us from making a final determination on this issue.
The tragic circumstances that gave rise to this records access dispute provide an opportunity for reevaluation of district policy as it relates not just to bullying but also to management of, and access to, records documenting complaints of bullying and the district's response to those complaints. The district's current "Code of Acceptable Behavior and Discipline" provides no guidance on creation and management of, or access to, such records. We urge the district to reevaluate its current code, along with current practices, and to introduce record's creation and management guidelines aimed at promoting agency accountability in the handling of a school safety problem that has reached epidemic proportions, often with tragic consequences such as those presented here. In the meantime, we refer this matter to the Kentucky Department for Libraries and Archives, under authority of KRS 61.8715, for additional inquiry as that agency deems warranted.
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:Darryl DenhamTerri Cox-CrueyJeremy J. Deters
Footnotes
Footnotes
1 Requests 2, 3, 4, and 5 were limited by date to records "from January 1, 2009 through the present."
2 Mr. Denham offers tangible proof that responsive counselor records may exist, or once existed, in the form of an email exchange between Mrs. Denham and Mr. Morwessel in October 2010. In her email to Mr. Morwessel, Mrs. Denham recounts an October 28 conversation with Sam during which he described incidents of bullying at school. In a response from Mr. Morwessel, a copy of which was sent to the school counselor, Mr. Morwessel states that the counselor "has been following up on much of this and administration is supporting on any inappropriate behaviors from students [sic]." Mr. Denham offers less tangible proof of his claim that counselor notes exist or existed by describing the family's experience while Sam was a student at Taylor Mill Elementary. He explains that the family discussed Sam's allegations of mistreatment at that school with school officials, and that he later obtained records relating to those discussions from the facility to which Sam was referred for outside counseling. He has not, however, provided the Attorney General with copies of those records.
3 The district maintains that an "exhaustive search was completed [for responsive records] at the superintendent's direction and involved many district employees." The district does not, however, indicate that Mr. Morwessel was questioned about the existence of a file relating to Sam or to his death. An adequate search for records responsive to Mr. Denham's request would have included a search of Mr. Morwessel's records for files relating to Sam or to Sam's death. Although Mr. Morwessel resigned as principal of Woodland Middle School sometime after Sam's death, he is still employed by the Kenton County Public Schools. If he has not already been questioned about the existence of the file, the district must now confirm or refute its existence, and, if it remains in existence, afford Mr. Denham access to it.
4 The Family Educational Rights and Privacy Act, popularly known as FERPA, regulates access to "education records." With the exception of certain narrow categories of records identified at 20 U.S.C § 1232g(4)(B)(i)-(iv), this term is defined to include all records that:
1. contain information directly related to a student; and
2. are maintained by an educational agency or institution or by a person acting for such agency or institution.
Under FERPA, the term "education record" is intended to be inclusive. FERPA precludes disclosure of personally identifiable student information to third parties in the absence of a parent's or eligible student's prior written consent. More importantly for purposes of our analysis, FERPA guarantees the right of a parent, or eligible student, to inspect the parent's child's, or eligible student's, own education records. As a practical and legal matter, compliance with FERPA is mandatory inasmuch as educational institutions that fail to comply risk forfeiture of federal funding.
5 Accord, 20 U.S.C. § 1232g(a)(4)(B)(ii) as construed in U.S. v. Miami University, 294 F.3d 797, 815 (6th Cir. 2002) recognizing that although law enforcement records did not originate as education records, they became education records when they were turned over to school officials for disciplinary proceedings. See also 03-ORD-201.