Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson Community and Technical College (JCTC) violated the Open Records Act in its disposition of Victoria L. King's (Appellant) request for copies of her granddaughter's student academic records. For the reasons set forth below, we find that JCTC violated the Open Records Act by failing to issue a written response to Appellant within three (3) business days, and failing to cite a specific exemption to the law authorizing nondisclosure of the requested records. However, we do find that JCTC properly denied access to the records pursuant to KRS 61.878(1)(k) 1 and (l) 2 which incorporate Family Educational and Privacy Rights Act ("FERPA") of 20 U.S.C. § 1232g, 34 CFR 99.30, and KRS 164.283(2). 3
On April 10, 2018, Appellant mailed an open records appeal to this Office. The appeal states that on March 29, Appellant submitted a request with JCTC seeking "copies of my grandchild records[.]" Appellant further stated that "as of this date the [JCTC] has denied and refuse to respond to this request by way of no response." Appellant attached her open records request to the appeal document. The request shows that Appellant was specifically seeking copies of admission records, public assistance and financial records, and attendance records from January 1, 2016 through December 31, 2016. Appellant also asked for "any other records documents or files" regarding her granddaughter from January 1, 2016 through December 31, 2016.
JCTC responded to the appeal on April 17, 2018. Regarding the response to the Appellant's open records request, JCTC acknowledged that a timely response was not issued. However, JCTC issued a response to the open records request on April 12, and denied the request. JCTC informed Appellant that the open records request would be denied because "student education records are protected under. . .20 USCA § 1232g (b)(1), (b)(2)(A) and 34 CFR 99.30, and Kentucky law under KRS 164.283(2)." JCTC stated that the request for copies was denied under the exemptions KRS 61.878(k) and (l), but that "[i]f the student wishes to view her records, she can make arrangements with the Admissions and Records Office."
There is no dispute that JCTC violated the procedural requirement of the Open Records Act. Specifically, KRS 61.880(1) dictates the procedure that a public agency must follow when responding to written requests made under the Act. In relevant part, the statute provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. See KRS 61.880(1). JCTC did not issue a written response until after it received notice of Appellant's appeal. Within that written response, JCTC did not invoke KRS 61.872(5) 4 or provide a detailed explanation of the cause for delay. Therefore, JCTC committed a procedural violation of the Act.
Regarding the substantive issue of this appeal, we find that JCTC properly withheld the education records requested by Appellant. The state and federal statutes and regulations cited by JCTC are appropriate grounds for withholding the records listed in Appellant's request. FERPA and 34 CFR 99.30 are federal laws that afford parents the right to have access to their children's education records, and the right to have some control over the disclosure of personally identifiable information from those records. The requirement in 20 U.S.C. § 1232g(a)(1)(A) 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. 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 or to be informed of the specific information contained in such part of such material. 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.
FERPA states that the term "educational agency or institution" means any public or private agency or institution which is the recipient of funds under any applicable program. 20 U.S.C. § 1232g(a)(3); 34 CFR 99.1. Therefore, JCTC is an institution required to comply with these federal laws.
The records sought by Appellant are protected from disclosure by FERPA. "Education records" are defined as those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution, or by a party acting for the agency or institution. 20 U.S.C. § 1232g(a)(4)(A)(i)-(ii); 34 CFR 99.3. That definition would include the admission records, public assistance and financial records, and attendance records requested by Appellant. As such, JCTC's reliance on FERPA to deny this request was appropriate.
JCTC was also correct in citing KRS 164.283(2) as a confidentiality protection for the requested records within Kentucky law. The statute requires that student academic records "shall be confidential. . .and shall not be released by any public supported institution of higher education in Kentucky. . .except with the express consent of the individual student." See KRS 164.283(2). As JCTC is a "public supported institution of higher education in Kentucky," the law pertains to student academic records in their possession. The law defines "academic" as "a student's official record of academic performance, including, but not limited to transcript of grades or other action taken by the institution directly related to academic performance." See KRS 164.283(1)(a). That definition encompasses the admission records, public assistance and financial records, and attendance records sought by Appellant. The protection of student academic records stated in KRS 164.283(2) is incorporated by KRS 61.878(1)(l), which exempts from public disclosure "[p]ublic records. . .made confidential by enactment of the General Assembly." Therefore, JCTC properly invoked KRS 164.283(2) and KRS 61.878(1)(l) as applicable exemptions to Appellant's request.
A party aggrieved by this decision shall appeal it 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(k) states: "(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:. . .(k) All public records or information the disclosure of which is prohibited by federal law or regulation;"
2 KRS 61.878(1)(l) exempts: "(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
3 KRS 164.283(2) states: "All student academic records shall be confidential and shall not require a student's Social Security number to identify the student, with the exception of the exemptions stated in subsections (3) to (9) of this section, and shall not be released by any public supported institution of higher education in Kentucky, to any person, organization, institution, group, or agency, except with the express consent of the individual student. This confidentiality shall apply only to student academic records, including, but not limited to, official transcript of grades."
4 KRS 61.872(5) states: "If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection."