OAG 93-35


April 19, 1993






David L. Keller

Kentucky School Boards Association

260 Democrat Drive

Frankfort, KY 40601

Dear Dr. Keller:

You have written our office requesting a clarification of our recent opinion on the Federal Education Records Privacy Act (FERPA). OAG 93-5. You express several concerns regarding potential violations of FERPA when parent members of the School Based Decision Making Council are allowed to review confidential student records. Consequently, we wish to issue a clarification of OAG 93-5.

OAG 93-5 sets forth the background and intent of FERPA. This opinion also describes the statutory authority of school councils including their duty to establish policy in several delineated areas. KRS 160.345(2)(j). We stated that in "order to achieve the education goals envisioned by the Kentucky Education Reform Act (KERA) the school council must be intricately aware of the grades, test scores and special needs of the students attending the school." OAG 93-5. We found that a school could release student records to a school council member if the local school district or school had an appropriate policy finding that the school council members were school officials pursuant to 20 U.S.C. 1232 g(b)(1)(A). Additionally, the policy must define the "legitimate educational interests" of the school council members. 34 CFR 99.6(a)(4).

Our opinion was solely advisory and we warned that the final arbiter of who is considered a "school official" is the Federal Department of Education. We also cautioned that allowing unauthorized individuals to review confidential student records could jeopardize the receipt of federal funding. Until this issue is clarified by the Federal department of Education this letter contains our advice regarding disclosing confidential student records to parent members on school councils.

Because of the risk in allowing unauthorized persons to review confidential student records we believe that the best policy is to strictly interpret the "school officials" exception to FERPA and not include parent members of school councils in the definition of "school officials" for purposes of 20 U.S.C. 1232 g(b)(1)(A). While we understand that the school council needs significant data involving the students prior to forming school policies, we believe that this information can be compiled by the principal and other unauthorized school personnel in an unidentifiable manner and presented to the council members.

As stated above our opinions are only advisory; however, this conservative approach will protect the school districts, the schools and the individual school personnel and school council members from allegations of FERPA violations resulting from an unauthorized record examination.

If the Federal Department of Education determines that parent members of a school council are authorized to review confidential student records pursuant to FERPA, we would advise the school district to require the parent school council members to sign a confidentiality agreement whereby the parent must agree not to disclose the contents of the identifiable student records outside of his or her official duties.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL





Lynne Schroering

Assistant Attorney General

(502) 564-7600

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