Request By:
Kevin and Susan Schulte
Andy Moore
Anne Courtney Coorssen
Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Oldham County School District violated the Open Records Act in partially denying Kevin and Susan Schulte's March 19, 2013, request for "a complete copy of [their son's] . . . school records . . . from the time he started school . . . in 2011 through March 19, 2013." Although the district promptly responded by disclosing the Schultes' son's cumulative and Primary Talent Pool (PTP) records, the Schultes complain that the district erred in failing to produce:
. records of any contacts [they] had with the school (including email);
. records of staff [] related to [their son];
. results of a math placement test [their son] took in January 2012; and
. teacher's notes upon which educational decisions were based.
With regard to the latter records, the Schultes were permitted to inspect the teacher's notes but not copy them. Despite this, the Schultes maintain that "[a] decision was made by the [gifted and talented students] committee at [their son's] school on March 15, 2013, based upon notes kept by his teacher. "
In supplemental correspondence directed to this office after the Schultes initiated their open records appeal, the district agreed to disclose "'contact records' between the Schultes and the school," explaining that "contact records" were not originally disclosed because they are not maintained in the student's cumulative education file or PTP file and therefore did not fall within the parameters of their March 19 request. The district denied the existence of staff records, explaining that the gifted and talented committee, which oversees the Primary Talent Pool, does not create minutes or notes, relying instead on discussions of "the information presented for each student" at the conclusion of which "a decision is reached by consensus. " The district also denied the existence of the math placement test taken by the Schultes' son in January 2012, explaining:
This test was given in the classroom by the classroom teacher and was not placed into the student's cumulative file. As a classroom assignment, it was not retained beyond the school year given. At the end of the year, the teacher shredded documents that were not retained in the student's cumulative file or PTP file.
Although the district's response that no responsive records exist raises questions under separate statutory enactment, especially KRS 61.800 to 61.850 1 and KRS 171.420 to 171.740, 2 those questions are not directly presented in this appeal and will not be addressed.
With regard to teacher notes "documenting her observations about the student," the district asserted that such notes do not "constitute an educational record under [the Family Educational Rights and Privacy Act], and are exempt under KRS 61.878(1)(i) and (j) as preliminary notes in which opinions are expressed, and arguably KRS 61.878(1)(a) regarding the privacy of the teacher. " Acknowledging that the notes were "used to refresh the teacher's memory and allow her to share anecdotal information with the other committee members," the district nevertheless maintained that "the notes themselves were not incorporated into any final report or action of the committee." Given the district's willingness to provide the Schultes with "contact records," and the apparent nonexistence of the requested staff records and math placement test, the dispute between these parties focuses on teacher's notes.
FERPA defines the term "education record" as a record which: 1) contains information directly related to a student; and 2) is maintained by an educational agency or institution or by a person acting for such agency or institution. 20 USC 1232g(a)(2)(4)(A)(i) and (ii). This definition excludes "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." 20 USC 1232g(a)(2)(4)(B)(i). We have located no prior open records decision in which the records in dispute consisted of teacher's notes about a student "used to refresh the teacher's memory and allow her to share anecdotal information with other [gifted and talented student] committee members" for the purpose of determining an appropriate student service plan.
At first glance, the teacher's notes at issue in this appeal would appear to fall within the exception for records of instructional personnel in the sole possession of the teacher found at 20 USC 1232g(a)(2)(4)(B)(i). If this is indeed the case, the records would be excluded from the definition of education records found at 20 USC 1232g(a)(2)(4)(A)(i) and (ii), and FERPA would not guarantee the Schultes' right of access to them. Additionally, our analysis would proceed solely under the Open Records Act and the exemptions cited by the district, namely, KRS 61.878(1)(i), (j),and (a). If, on the other hand, the contents of the teacher's notes became "accessible" or were "revealed to" members of the gifted and talented student committee, then the notes would not fall within the exception for records of instructional personnel because their contents was shared with the members of the gifted and talented student committee. In such a case, the notes would need to be disclosed to the Schultes as an education record directly related to their son. However, on the record before us, we decline to find that the teacher's notes in dispute became accessible to or were otherwise revealed to the gifted and talented student committee. Accordingly, the district properly withheld the teacher's notes from disclosure.
In response to our KRS 61.880(2)(c) inquiry, the district advised that 704 KAR 3:285 directs the creation of a "selection and placement committee" for gifted and talented students to, inter alia , "[d]etermine which students meet identification criteria and which services will be included in each identified student's gifted and talented service plan. " The district further advised that "anecdotal records" are included in the information presented to the committee. 3 Finally, the district indicated that the Schultes' son's teacher used her notes to enable her to share anecdotal information about their son with the committee. Nevertheless, the district emphasized that the notes were not "maintained by an educational institution or by a person acting for such agency or institution" but remained in the teacher's sole possession. We find the district's position relative to the teacher's notes relating to the Schultes' son persuasive as nothing in the record suggests that the express content of the teacher's notes was transmitted to the members of the gifted and talented student committee for the purpose described above. No party to this appeal seems to dispute the fact that the notes themselves remained in the teacher's possession even as she used them to "refresh her recollection" during the relevant committee meeting 4 Under these circumstances, we believe they are not education records to which the Schultes must be afforded access.
Our analysis under the Open Records Act would likely yield the same result. Unless the anecdotal information the Schultes' son's teacher used to refresh her recollection before the gifted and talented student committee was indisputably adopted by the committee in reaching its decision--something that cannot be conclusively established by way of the record before us--the preliminary characterization of the notes would remain unchanged.
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 Relating to open meetings of public agencies.
2 Relating to records management and retention.
3 Other information presented to the committee includes:
. primary portfolio;
. inventory checklists;
. parent interviews or questionnaires; and
. available formal test data.
4 FERPA clearly requires that an education record contain information directly related to a student and that it be maintained by an educational agency or institution or by a person acting for such agency or institution. 20 USC 1232g(a)(2)(4)(A)(i) and (j): Owasso Independent School District v. Falvo, 534 U.S. 426 (2002) (student assignments are not education records when they are exchanged by students for purposes of peer grading because they are not "maintained . . . in a file in a school's record room or on a secure database").