Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
George Beason appeals the inaction of the Elizabethtown Independent Schools (EIS) upon receipt of his April 13, 2015 request for "one copy of report concerning an incident involving [my stepdaughter] at the time, [K.L.], 1 at Elizabethtown High School, on or about October 13, 2011 [sic] possession of marijuana on school grounds." Alleging that he did not receive any written response, Mr. Beason initiated this appeal by letter dated April 29, 2015. However, upon receiving the notification thereof, Superintendent Jon Ballard responded on behalf of EIS, advising that "neither this office nor anyone at Elizabethtown High School has any record of an open records request from Mr. Beason. This office has consistently acknowledged the inability to conclusively resolve factual disputes relating to actual delivery and receipt of requests and the issuance of responses by public agencies. See 11-ORD-012; 12-ORD-204. Here, as in past appeals, the record lacks adequate proof on this issue for the Attorney General to make a determination. This office has no reason to question the veracity of Mr. Beason or that of Superintendent Ballard. Given the conflicting evidence presented, this office declines to find that a violation of KRS 61.880(1) was committed.
Superintendent Ballard further observed that "[u]nless Mr. Beason has some legal guardianship of the student (there are no such records on file), the Family Educational Rights and Privacy Act [FERPA] would prohibit the school from releasing student information to Mr. Beason. . . ." Because the agency "risks forfeiture of federal funding not just for denying parents access to their child's education record[s], but also for releasing education records to persons not entitled to such records, we find that [its] denial of [Mr. Beason's] request, absent conclusive proof" of his legal entitlement to any education records, including documents potentially responsive to his request, if any, did not violate the Open Records Act. 04-ORD-173, p. 4 (original emphasis). 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, codified at 20 U.S.C. § 1232g, 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, codified at KRS 160.700 et seq. , and incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 FERPA regulates access to "education records" like those in dispute; § 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." With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), the term is expansively construed to include all information, regardless of its 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. FERPA specifically precludes the disclosure of personally identifiable student information to third parties in the absence of prior written consent from a parent or eligible student. Conversely, 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. 4 See 10-ORD-069; 12-ORD-112. 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
This office has consistently recognized the "importance of conclusively establishing the identity of the requester and his legal entitlement, or lack thereof," to education records. 04-ORD-173, p. 3. In 04-ORD-173, the requester was purportedly the father of the student whose records he requested. Given the conflicting evidence presented, this office found the Bracken County Board of Education's reluctance to honor the request "was not unreasonable and that the absence of conclusive proof of [his] paternity justified the Board's denial of his request." Id., p. 2. A letter from the United States Department of Education, Office of Family Compliance validated the Board's position, stating that a "'school may ask for legal certification denoting parenthood, such as a court order or birth certificate, from the parent requesting access to records.'" Id., p. 3. See 06-ORD-186 (reaffirming 04-ORD-173 in holding that school properly denied request for education records of a student on the basis of FERPA, and 20 U.S.C. § 1232g(b)(1) in particular, as the requester did not present any legal certification denoting parenthood of the student); 09-ORD-151 (affirming denial by school board of request by purported "natural biological father" of students whose education records he requested absent legal certification that he was the parent of the students in question); compare 10-ORD-069.
Mr. Beason has not claimed that he is the biological father of K.L. Rather, he acknowledged that he was previously the stepfather of K.L. He provided no evidence to even suggest that he was or is the legal guardian of K.L. In the absence of any proof that he is legally entitled to access the education records of K.L. , this office affirms the denial by EIS of his request on the basis of FERPA. Either party may appeal this decision by initiating action in the appropriate circuit court per 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 The student has been identified using her initials throughout our decision to protect her privacy interests.
2 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)].
3 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."
4 Likewise, KRS 160.715(1) provides:
Parents of students or eligible students attending public institutions or who have been in attendance shall have the right to inspect and review student education records within a reasonable time of making a request to inspect.
KRS 160.705(1), on the other hand, provides:
Education records of students in the public educational institutions in this state are deemed confidential and shall not be disclosed, or the contents released, except under the circumstances described in KRS 160.720.
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.