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 Bardstown Independent School District violated the Kentucky Open Records Act in denying Jeffrey S. Walther's May 10, 2013, request for "a copy of the complete and unredacted video from Bus 21 (Robin Mudd) from January 7, 2013." Having received no response to his request (directed to Superintendent Brent A. Holsclaw), Mr. Walther initiated this appeal by letter dated May 28, 2013, advising that his firm, Walther, Roark & Gay, PLC, represents Robin Mudd "in connection with her employment in the Bardstown City Schools." Upon receiving notification thereof, Jason P. Floyd, legal counsel for the District, denied the request on behalf of his client, 1 relying upon the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, incorporated into the Open Records Act by operation of KRS 61.878(k), and the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. , incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Under both FERPA and KyFERPA, he asserted, the requested video is "an educational record that cannot be disclosed without prior written consent of the parents of those students recorded thereon, which has not been provided." Mr. Floyd asserted that in 07-ORD-005 the Attorney General recognized as much when presented with similar facts. Based upon the reasoning contained in prior decisions of this office addressing the question presented here, including 99-ORD-217 and 07-ORD-005, this office affirms the District's denial of Mr. Walther's request. 2
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, 3 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, KyFERPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 4 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." 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). 5 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, 168 S.W.3d 398 (Ky. App. 2004). Assessing the propriety of a school district's denial of a teacher's request to inspect a videotape "from inside" her classroom, the Court, in relevant part, "agree[d] the videotapes [used for monitoring that would reveal the identities of students] are, in fact, 'education records' . . . ." Medley at 404. 6
The following excerpt from 99-ORD-217, a copy of which is attached hereto and, in relevant part, incorporated by reference, is controlling:
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, 7 documents the conduct and activities of the Bennetts' 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' right to inspect and review education records related to their son, the Bell 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, 8 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 (copy enclosed). 9 Based upon the evidence of record, this office must evaluate Mr. Walther's/Ms. Mudd's request like that of any requester (see note 9); therefore, as in 99-ORD-217, this office must "affirm the [Bardstown Independent School District's] denial of [Mr. Walther's] 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. See 07-ORD-037; 12-ORD-034; compare 11-ORD-106.
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:
Jeffrey S. WaltherBrent A. HolsclawJason P. Floyd
Footnotes
Footnotes
1 Mr. Floyd initially explained that "the apparent failure to respond to that email was inadvertent, on my part." Apparently, Mr. Floyd continued, "the request was initially sent by Mr. Walther via electronic transmission and the school district believed it was copied to me in that electronic transmission. Because I had been attorney of record for the school district when the matter between Ms. Mudd and the school district was subject to a prior administrative agency review, the school district believed that I had responded to that letter." Insofar as the District failed to issue a written response within three business days of receiving the request, citing the applicable statutory exceptions(s) and explaining how it applies to the record being withheld, the District violated KRS 61.880(1). Because the District has essentially acknowledged this procedural error, this office will not unnecessarily lengthen the instant decision with a recitation of the well-established law regarding application of this mandatory provision. See 10-ORD-179.
2 In light of this determination, analysis of the District's alternative basis for denial, "that the request is also duplicative of material already provided to the requesting party in a prior administrative agency proceeding," In the Matter of Robin Mudd, Petitioner v. Bardstown City Schools, Respondent, Action No. 13-CE-02, "which resulted in a dismissal of the administrative appeal of Ms. Mudd against the [District]" following termination of her employment, is unnecessary beyond noting that Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001) establishes that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation." See also Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010); 12-ORD-152. Mr. Floyd also noted that his client "does not keep the entirety of [videotaped] files for its school buses for every educational day in the school year." Accordingly, to the extent Mr. Walther was requesting "additional length of [videotape] from the day in question," Mr. Floyd advised that his client "does not have any additional" video from that day.
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. Although full discussion of this argument is also unnecessary, this office notes that Records Series L6456 on the Public School District Records Retention Schedule , entitled "School Bus Surveillance Video Recordings," indicates that "[r]ecording technology is such that there is a short window whereby these videos may be viewed. This time period is usually between 7 and 10 days. Because this is a video of students it is considered an educational record under FERPA." The Retention and Disposition instructions provide that public school districts must "Retain ten days, then destroy. If there is an incident that is being investigated, retain until investigation and legal activity is complete, then destroy." Accordingly, the District would presumably have destroyed the recording in the normal course of business when the matter was resolved if the video was not the subject of a pending request under the Open Records Act.
3 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)].
4 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."
5 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.
6 Both FERPA and KyFERPA exempt certain parties from the general rule of nondisclosure, such as "teachers within the educational institution . . . who have been determined by such agency or institution to have legitimate educational interests, . . ." and "school officials, including teachers, with legitimate education interests and purposes," codified at 20 U.S.C. 1232g(6)(1)(A) and KRS 160.720(2), respectively. The record on appeal does not specify the capacity in which Mr. Walther's client, Ms. Mudd, was employed prior to her termination by the District nor has any evidence of "legitimate educational interests or purposes" for the request been offered; rather, both parties are silent on this issue and the record suggests that she requested the video in relation to whatever culminated in her employment being terminated rather than for "legitimate educational interests." Compare 13-ORD-076. Given the lack of any discussion or evidence regarding the nature of Ms. Mudd's employment and whether the request was made for "legitimate interests or purposes," as well as her current employment status, our holding is premised on the assumption that she did/does not satisfy the criteria of said exceptions; accordingly, her request was evaluated like that of any member of the public.
7 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 more recently confirmed in a telephone conversation with a representative of the Compliance Office that its position regarding this issue remains the same. See 12-ORD-034 (rendered February 9, 2012), p. 7, note 11.
8 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.
9 In Medley , the Court held that her request should be "judged in light of her position as a teacher," as opposed to a member of the public, but also noted that "the school bus scenario" presented in 99-ORD-217 was "clearly distinguishable" from the facts presented in that case as Medley was "a teacher who was present in the classroom when the videotapes were recorded" so there was "no confidentiality issue." Medley at 404. Medley stated on the record that the videotapes "would be a valuable resource 'to use to evaluate [her] performance, as a teacher, as well as the management of [her] classroom.'" Id. at 401. The Board failed to establish that her interest was not legitimate and the Court of Appeals reversed the circuit court's decision as not being supported by substantial evidence, remanding for a hearing on the question of whether she had a legitimate educational interest. Id. at 406. Ms. Mudd has not been "identified as an educator" like Medley nor was the requested video recording made in a classroom where Ms. Mudd was present. Id. at 405. If Ms. Mudd was, in fact, a teacher, she was entitled to access "education records" not accessible by the general public, including the requested video recording, "so long as a legitimate educational interest [was] established." Id. Again, Mr. Walther has not raised this argument nor does the record on appeal contain any evidence regarding Ms. Mudd's status at the time of the subject request or purpose in requesting access, presumably because the aforementioned exceptions did not apply.