24-ORD-239
November 15, 2024
In re: Tanyqua Oliver/Fayette County Public Schools
Summary: Fayette County Public Schools (“FCPS”) did not violate the
Open Records Act (“the Act”) when it denied a request for a copy of school
surveillance video under KRS 61.878(1)(k) and 20 U.S.C. § 1232g when
the video recorded multiple students. FCPS also did not violate the Act
when it did not provide records it does not possess or when it requested
that the Appellant make an appointment to inspect records in person.
Open Records Decision
Tanyqua Oliver (“Appellant”) submitted a request to FCPS seeking “all
evidence collected and to be used against [a particular student] or sent to any other
public agency” related to an incident at Jessie Clark Middle School on September 12,
2024. The Appellant specified that responsive records include “notarized abatements,
witness list[s], video footage, testimony, [and] notes.” In response, FCPS informed the
Appellant that it had provided all records related to the incident except video footage.
Regarding the video footage, FCPS stated, pursuant to the Family Educational
Rights and Privacy Act (“FERPA”), that it cannot produce copies of video footage
containing students’ identities, but the specified “student’s parent may inspect the
footage with the appropriate personnel.” FCPS then provided contact information for
an FCPS employee who would coordinate a time for inspection of the footage. This
appeal followed.
FERPA, 20 U.S.C. § 1232g, is incorporated into the Act under KRS 61.878(1)(k).
Under 20 U.S.C. § 1232g(b)(1), “[n]o 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 . . .) of students
without the written consent of their parents to any individual, agency, ororganization,” excepting certain individuals not relevant here. FERPA precludes the
disclosure of education records containing personally identifiable student information
to third parties without prior parental written consent. Video footage of students is
an education record containing such information. See, e.g., Medley v. Bd. of Educ. of
Shelby Cnty., 168 S.W.3d 398, 404 (Ky. App. 2004); 22-ORD-073; 99-ORD-217 (finding
that FERPA prevents even the parent of a student recorded on video from inspecting
such recording when the video also captured other students).
The applicability of FERPA to a particular record must be determined on a case-
by-case basis. FCPS explains that the footage at issue here captures the conduct of
the identified student and a second student. FCPS states that it cannot provide a
copy of the footage to the Appellant because it constitutes an education record of the
other student seen in the video. The Appellant argues that she seeks the footage
maintained by FCPS’s law enforcement personnel. The Appellant argues that the
copy given to FCPS is an education record, but the video footage in the possession of
FCPS’s law enforcement personnel is not an education record.
“If a law enforcement unit of an institution creates a record for law enforcement
purposes and provides a copy of that record to a school official for use in a disciplinary
proceeding, that copy is an ‘education record’ subject to FERPA if it is maintained by
the school official.” United States v. Miami Univ., 294 F.3d 797, 814 (6th Cir. 2002)
(cleaned up). However, “education records do not lose their status as education
records and remain subject to the Act, including the disclosure provisions, while in
the possession of the law enforcement unit.” Id. (cleaned up). FCPS explains that the
video footage in question was “created by the District—and not the District’s police
department—and a copy was provided to the District’s police department at its
request.” That copy is an education record that does “not lose [its] status as [an
education record] . . . while in the possession of the law enforcement unit.”
Accordingly, the Board did not violate the Act when it denied the Appellant’s request
for a copy of the video footage.
The Appellant also claims more responsive records, “such as written or recorded
statements from administrators and teachers” exist but were not provided. FCPS
maintains that it has provided all responsive, non-exempt records. Once a public
agency states affirmatively that a record does not exist, the burden shifts to the
requester to present a prima facie case that the requested record does or should
exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). If the requester makes a prima facie case that the records do or should exist,
then the public agency “may also be called upon to prove that its search wasadequate.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky.
2013) (citing Bowling, 172 S.W.3d at 341). Here, the Appellant has not made a prima
facie case that FCPS possesses additional records responsive to her request.
Accordingly, FCPS did not violate the Act when it did not provide records it does not
possess.
Finally, the Appellant argues FCPS violated the Act when it did not allow her
to immediately inspect the video footage when she visited the agency. FCPS states
that it has asked the Appellant to schedule an appointment to coordinate her review
of the video footage. Although any person has the right to inspect records in person
at the public agency during normal business hours, KRS 61.872(3)(a), the Office has
found that a public agency does not violate the Act when it merely attempts to plan
ahead for the requester’s visit and have the responsive records readily available for
his inspection. See, e.g., 24-ORD-044; 20-ORD-013. Of course, a public agency cannot
prevent a person from exercising the right of inspection by making appointments
difficult. See, e.g., 15-ORD-182 (finding a violation when an agency continually
canceled appointments); 93-ORD-48 (finding a violation when the agency limited the
hours for inspection from 8:00 a.m. to 11:00 a.m. for all requesters despite the agency
not closing until 4:30 p.m.). But here, FCPS states it merely requested that the
Appellant schedule a time to inspect the requested records so they could be gathered
and placed in a secure location for his inspection. There is no evidence that FCPS has
placed unreasonable restrictions on the Appellant’s right to inspection or that it has
a pattern of canceling the Appellant’s appointments. Thus, FCPS did not violate the
Act when it asked the Appellant to schedule an appointment for her review of the
video footage.1
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
1
The Appellant raises several claims related to the accuracy of education records in the possession
of FCPS and alleged violations of FERPA. But those issues are beyond the scope of the Office’s review.
See, e.g., 23-ORD-048 n.1 (noting the Office “cannot adjudicate ancillary legal disputes in the context
of an appeal brought under KRS 61.880(2)”); 22-ORD-244 n.3 (same).Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#413
Distributed to:
Tanyqua Oliver
Andria Jackson
Demetrus Liggins
Alex Garcia
Carmine Iaccarino