TO BE PUBLISHED
February 7, 1994
IN RE: Pierce Whites/Pineville Independent School District
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Pierce Whites, an attorney representing the Bell County Board of Education, to the Pineville Independent School District. On November 8, 1993, Mr. Whites requested the address and telephone number of each student attending school in the Pineville Independent School District. In a response dated November 17, 1993, Superintendent Diana Schott Lincks denied Mr. Whites' request, advising him that the Family Educational Rights and Privacy Act of 1974 (FERPA),  which is incorporated into the Open Records Law by operation of KRS 61.878(1)(j), prohibits release of the requested records. She explained:
[FERPA] mandates that all educational institutions receiving federal funds must strictly adhere to a policy and practice of protecting the confidentiality of personally identifiable information and student records. There are some exceptions to this federally imposed obligation. One of those exceptions most closely relevant to your request is that relating to so-called 'directory information.' See 20 U.S.C. §1232g(5)(a) and (b) [sic] See also, 34 C.F.R. §§99.3; 99.5(3); 99.37.
Upon a review of the policies of the Pineville Independent Schools, and upon information and belief, it would appear none of the information you have requested has been designated as directory information.
Superintendent Lincks thus denied his request under applicable state and federal law.
In a followup letter to Superintendent Lincks, Mr. Whites acknowledged that although FERPA applies to education records, the Superintendent improperly relied on 20 U.S.C. §1232g(a)(5)(A) and (B) in denying his request. Instead, he maintained that 20 U.S.C. §1232g(b)(5) directs the release of the records to the Bell County Board of Education. That statute provides:
Nothing in this section [prohibiting the release of educational records or personally identifiable information by an educational agency or institution without a parent's written consent] shall be construed to prohibit State and local educational officials from having access to student or other records which may be necessary in connection with the audit and evaluation of any federally or state supported education program or in connection with the enforcement of the Federal legal requirements which relate to any such program, subject to the proviso in paragraph(3). 
It was, and is, Mr. Whites' position that the Bell County Board of Education is comprised of educational officials who are exempt from the federal prohibition on release of educational records.
Mr. Whites explains that the requested records are needed by the Board "to determine whether federally and state supported education programs are being fairly utilized." Specifically, the Board wishes "to develop a useful map of the districts," thereby correcting the improperly drawn boundary lines between the Pineville and Bell County School districts. Additionally, Mr. Whites maintains, the records will facilitate "an inexpensive and effective audit and evaluation of the disbursal of federal and state educational funds and programs in the county." In closing, Mr. Whites offers Superintendent Lincks assurances that the records will be used solely by the Board of Education, "and will be protected in a reasonable manner."
Responding on behalf of the Pineville Independent Schools, Mr. Robert L. Chenoweth again denied Mr. Whites' request. Mr. Chenoweth argued Mr. Whites' reliance on 20 U.S.C. §1232g(b)(5) is misplaced insofar as there is "no foundation for one school district to engage in such assessment of another school district." This appeal followed.
We are asked to determine whether the Pineville Independent School District properly relied on KRS 61.878(1)(j) and 20 U.S.C. §1232g(a)(5)(A) and (B) in denying Mr. Whites' request. For the reasons set forth below, we conclude that the District did not violate the Open Records Act in denying his request.
KRS 61.878(1)(j) permits an agency to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." This provision incorporates 20 U.S.C. §1232g, which regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. It is also aimed at insuring parents of students, and students themselves, if they are over eighteen years of age, access to their education records.
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 or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 U.S.C. §1232g(b)(1), which 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 [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities]. . . .
Although the records sought by Mr. Whites would typically be characterized as directory information, the Pineville Independent School District has not designated them as such under the conditions described at 20 U.S.C. §1232g(a)(5)(B). 
Accordingly, Superintendent Lincks properly advised Mr. Whites that the records could not be released under 20 U.S.C. §1232g(a)(5)(A) and (B).
Mr. Whites argues that his client, the Bell County Board of Education, is nevertheless entitled to education records containing the home addresses and telephone numbers of students attending school in the Pineville Independent School District, without parental consent, because the Board wishes to conduct an "audit and evaluation" of the district to establish proper boundary lines. 20 U.S.C. §1232g(b)(5). Relying on Board of Education of the City of New York v. Regan, 131 Misc.2d 514, 500 N.Y.S.2d 978 (1986), he maintains that the language of this provision is clearly intended to create an exception for state and local officials in the field of education. Mr. Whites notes that the District "does not dispute that the Bell County Board of Education consists of state or local officials, as contemplated by 20 U.S.C. §1232g(b)(5), nor can Pineville dispute that the requested information is critical to the determination of whether state and federal educational programs and funds are being fairly and properly distributed between the two school systems." He urges this Office to issue a decision consistent with these views.
As Mr. Whites correctly observes, 20 U.S.C. §1232g(b)(5) authorizes an educational agency or institution to release education records, without prior written consent, where the disclosure is made to state and local educational officials "in connection with the audit and evaluation of any federally or state supported program or in connection with the enforcement of the federal legal requirements which relate to any such program . . . ." There is a marked paucity of authority relative to this provision to aid us in its interpretation.
In a conversation with Mr. Leroy Rooker, Director of the Family Policy Compliance office of the U.S. Department of Education, this Office was advised that although the Buckley Amendment permits the educational agency or institution to release education records to certain enumerated officials and organizations, or in connection with certain activities, without written consent, including state or local educational officials engaged in an audit and evaluation of a federal or state supported program, it does not require the agency or institution to release them. The only mandatory disclosure provisions found in the amendment relate to the release of the education records of students to their parents, or to the students themselves, if they are over eighteen. 20 U.S.C. §1232g(a)(1)(A). The educational agency or institution may release the records, under the terms and conditions described in 20 U.S.C. §1232g(b), but is not required to release them. Mr. Rooker noted the precatory language of 34 C.F.R. §99.31, governing release of records without prior consent. 
Guided by these observations, we conclude that the Pineville Independent School District properly denied Mr. Whites' request under authority of KRS 61.878(1)(j) and the Family Educational Rights and Privacy Act. Although the District may release education records to state and local educational officials in connection with the audit and evaluation of a federally or state supported program, pursuant to 20 U.S.C. §1232g(b)(5), it is not required to do so.
Mr. Whites may challenge this decision by initiating action in the appropriate circuit court. 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 any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Superintendent Diane Schott Lincks
Pineville Independent School District
401 Virginia Avenue
Pineville, KY 40977
Hon. Pierce Butler Whites
Whites and Whites
P. O. Box 781
Louisa, KY 41230
Hon. Robert Chenoweth
121 Bridge Street
Frankfort, KY 40601
20 U.S.C. §1232g
The proviso referenced in the concluding sentence of 20 U.S.C. 1232g(b)(5) states that "any data collected by such officials shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements."
20 U.S.C. §1232g(a)(5)(B) sets forth the conditions under which directory information must be designated. It provides: Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent.
34 C.F.R. §99.31(a) provides that "[a]n educational agency institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions . . . ." (Emphasis added.)