Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jefferson County Public Schools ("JCPS") properly withheld a surveillance videotape depicting an altercation between an officer and a student under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, and Kentucky Family Education Rights and Privacy Act ("KFERPA"), KRS 160.705. We find that JCPS did not violate the Open Records Act in withholding a surveillance videotape depicting an altercation between an officer and a student as an education record under FERPA and KFERPA.
Background
WLKY submitted an open records request to JCPS by email on Feb. 3, 2015. WLKY stated:
WLKY is requesting the surveillance video of these two incidents:
01/22/15 at 11:34am at North Olmstead Academy in which LMPD Officer Jonathan Hardin is charged with pushing a 13 year old and then striking the victim in the face and knocking that victim to the floor.
01/27/15 at 12:19pm at North Olmstead Academy in which LMPD Officer Jonathan Hardin is charged with applying an unauthorized "choke hold" to a 13 year old victim, then kept the child out of class and then drove the victim home and did not report to victim's parents what had happened.
According to LMPD report, there is surveillance video of both of these incidents.
JCPS responded on Feb. 5, 2015. JCPS stated:
Please be advised that your request for the surveillance video is denied pursuant to KRS 61.878(1)(k) which exempts from disclosure "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation" and 61.878(1)(l) which exempts "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The videotape requested is an education record which contains personally identifiable information of the students recorded thereon. Because the videotape is an education record, it is confidential under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. 1232g et seq. and the Kentucky Family Education Rights and Privacy Act ("KFERPA") KRS 160.700, et seq. and FERPA and KFERPA prohibit the School District from disclosing education records.
WLKY initiated this appeal on Feb. 13, 2015. WLKY began by providing two criminal complaints against Officer Hardin, resulting in charges of Assault, 1st Degree, Assault, 4th Degree, Wanton Endangerment - 1st Degree, False Swearing, and two counts of Official Misconduct - 1st Degree. WLKY argued that the surveillance videos were not education records within the scope of FERPA and KFERPA:
"Education records" are narrowly defined in FERPA as those "materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or by a person acting for such agency or institution." 20 U.S.C. § 1232g(a)(4)(A) . . . . Similarly, KFERPA defines "education records" as materials " directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution." KRS § 160.700(3) . . . . The statutory definitions offer further support for the interpretation that "education records" is intended to be broad, but not to encompass every record reflecting any and all information about a student. . . .
. . . The requested video recordings are security camera surveillance recordings. This strongly suggests . . . that these videos were made in the ordinary course of monitoring the security and safety of the school, and that they were not made or kept as records of any particular student's conduct and activity.
Furthermore, the nature of the events in the videos . . . suggests that the videos have nothing to do with the activities or conduct of the children depicted therein, and that to the extent children appear in the videos, it is as victims of assault "without justification" by an adult, and not as the focus of the videos. . . . Thus, the focus of the requested videos is not any student at the school, but, rather, is Officer Hardin.
While WLKY argues these videos are not exempt as "education records," to the extent any children are personally identifiable in the videos, WLKY respectfully argues that, if such information is exempt under the law, it can be redacted from the videos without withholding those non-exempt portions of the video showing the allegedly unlawful actions of Mr. Hardin, which must be produced. See, e.g ., 11-ORD-106 (2011).
WLKY argues that the surveillance videos are not education records because they were made in the ordinary course of monitoring the security of the school, and that Officer Hardin is the focus of the videos rather than any children.
WLKY argues in the alternative that if information regarding children is determined to be education records, that such information should be redacted and non-exempt portions of the video should be produced.
JCPS responded to the appeal on Feb. 27, 2015. JCPS argued that "videotapes depicting students, whether on a school bus or in a classroom, are education records within the scope of FERPA and KFERPA," citing 07-
ORD-005, Medley v. Bd. of Educ., Shelby Cnty., 168 S.W.3d 398, 404 (Ky. Ct. App. 2004), 99-ORD-217, and 12-ORD-034. JCPS distinguished 11-ORD-106, cited by WLKY, on the grounds that "this decision involved two adults . . . . Unlike the 'unique set of facts' found in 11-ORD-106, the videotapes at issue depict 13-year-old students at North Olmstead Academy." JCPS further argued that "redaction would be impossible without compromising the privacy rights of the students depicted on the video, " citing 12-ORD-034.
On Mar. 12, 2015, WLKY submitted a follow-up letter, stating that:
I have learned that some portion of these videos was shown in open court this morning during a probable cause hearing related to the charges pending against Officer Hardin. I have further learned that video cameras present in the courtroom captured those videos and that the videos were broadcast and published by news media over the airwaves and on the Internet.
WLKY believes the public display of these videos in open court supports our argument . . . that the videos requested by WLKY are not protected from disclosure by FERPA, KFERPA or any other provision of law.
Analysis
FERPA, 20 U.S.C. § 1232g(b)(1), withholds federal funds from "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 . . .) of students without the written consent of their parents to any individual, agency, or organization," with specified exceptions. KFERPA, KRS 160.705(1), provides that "education records of students in the public educational institutions in this state are deemed confidential and shall not be disclosed, or the contents released," with specified exceptions. FERPA defines "education records" 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." 20 U.S.C. § 1232g(a)(4)(A). Similarly, KFERPA provides that "'education record' means data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution . . . or data otherwise maintained and used by the educational institution or a person acting for an institution." KRS 160.700(3) . Further, KRS 160.705(3) provides that "recordings of school activities shall be subject to privacy and confidentiality requirements as provided in this chapter." FERPA and KFERPA prohibit the release of education records relating directly to a student.
In
Medley v. Bd. of Educ., Shelby Cnty., 168 S.W.3d 398 (Ky. Ct. App. 2004), the court considered an open records request involving tapes of classroom instruction. The court expressly held that "the videotapes in question are, in fact, 'education records.'" Id. at 404. Following Medley , we have consistently held that videotapes involving students are "education records." "In defining 'education records,' the 'congressional intent was to fashion a broad definition.'" 10-ORD-150; 07-ORD-258. Records of students "do not have to be related to academic matters to be 'education records' under FERPA." Id . "The term is expansively construed to include all information, in whatever form, which satisfies the two-part test . . . ." 12-ORD-034. Therefore, "videotapes used for monitoring student activities, and revealing the identities of students, are education records the disclosure of which is prohibited by federal law. " 07-ORD-037.
The FERPA rights of other students involved in surveillance videos may also prohibit disclosure. 20 U.S.C. § 1232g(a)(1)(A) provides that "if any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student." In 99-ORD-217, we upheld a denial of a request for a bus surveillance video depicting a confrontation between students on a school bus on the grounds that the video constituted an "education record" protected by FERPA and KFERPA. We found that "the surveillance tape . . . must be characterized as an education record." Id. We also considered the rights of other students depicted in the video and the problems inherent in redaction:
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. . . . 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, 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. We must, therefore, affirm the Bell County Public Schools' denial of Mr. Bennett's request on the basis of KRS 61.878(1)(k) and 20 U.S.C. § 1232g(b)(1), and corresponding provisions in state law.
Id . In 99-ORD-217, we held that a video involving an altercation between students was an education record, and that the involvement of other students and their rights under FERPA and KFERPA made redaction infeasible; therefore the denial of access to the video was upheld. Similarly, in 07-ORD-005, a requester sought a videotape taken on a school soccer trip depicting "an incident with her son and one or more other students on the bus. " Following 99-ORD-117, we held that "allowing Ms. Combs to view the requested videotape recording would violate the privacy rights of the students recorded thereon in addition to her son. Thus, Ms. Combs is prohibited from viewing the requested videotape under federal and state law and likewise under the Open Records Act. "
More directly on point, in 12-ORD-034, we considered an open records appeal involving a request "sent on behalf of . . . the Step-Father and Mother of [C.P.], a student at Rowan County Middle School," requesting a "video recording made on the afternoon school bus ride . . . depicting the altercation between [C.P.] and Mr. Louis." Following 99-ORD-217, we affirmed the denial of the request as protected by FERPA and KFERPA. There is thus precedent that a video of an altercation between a student and an adult is still protected by FERPA and KFERPA.
WLKY relies on 11-ORD-106, in which a school bus surveillance videotape captured an altercation between parents and a bus driver. In that decision, we reasoned that:
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." . . . 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 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.
Id . In 11-ORD-106, we held that since the video depicted an altercation between two adults, it could not be withheld in its entirety as an education record, and was "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." Id . We also allowed for redaction of portions of the video, but noted that there was no general requirement to redact surveillance videos.
11-ORD-106 is distinguishable from the present case in that it involves an altercation between two adults, and not students. The present case is more similar to 12-ORD-034, in that the videos involve an altercation between an adult and a student. The videos also depict multiple students, making them more similar to the videos involved in 99-ORD-117 and 07-ORD-005, which depicted multiple students such that redaction would be infeasible. Accordingly, we follow those decisions and hold that JCPS did not violate the Open Records Act in withholding surveillance videotapes depicting an altercation between a police officer and a student, with other students depicted in the videos.
The fact that at least one of the videos has been publicly released as part of a court proceeding does not change the analysis. "FERPA provides that students' educational records are privileged and confidential unless students' parents or guardians specifically waive those rights."
D.F. v. Codell, 127 S.W.3d 571, 574 (Ky. 2003). 20 U.S.C. § 1232g(b)(2)(A) and KRS 160.720(1) allow parents to release education records by providing written consent. WLKY has not presented any evidence that the parents have consented to the release of the education records. We are not presented with the question of whether any disclosure of the videos by JCPS to any law enforcement agencies or courts complied with FERPA and KFERPA, nor do we have the information in the record to make such a determination. We are only presented with the issue of whether JCPS may release the videos to the general public consistent with the Open Records Act, and on the record before us, we find that JCPS cannot release the videos.
In summary, school surveillance videos depicting altercations between students and adults are education records protected by FERPA and KFERPA, and may not be disclosed without written consent unless otherwise provided. JCPS therefore did not violate the Open Records Act in withholding school surveillance videos depicting altercations between a student and an adult as education records. The fact that a surveillance video depicting an altercation between an officer and a student was made publicly available during a court proceeding does not change the video's status as an education record.
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 proceedings.