NOT TO BE PUBLISHED
97-ORD-4
January 15, 1997
In re: William Kelly/Fleming County Board of Education
Open Records Decision
This matter comes to the Attorney General on appeal from the Fleming County Board of Education's denial of Ledger-Independent reporter William Kelly's November 27, 1996, request to review the audio tape of the open session of the board's November 25 special meeting. On behalf of the board of education, Thomas L. MacDonald provided Mr. Kelly with a copy of the minutes of the meeting, reflecting that the board convened and immediately went into executive session, pursuant to KRS 61.810(1)(f), to discuss individual student discipline. Mr. MacDonald denied Mr. Kelly's request for the audio tape, noting that “[t]here was no other activity of any sort at this special meeting,” and that the tape “may have included the names of students and/or their parent(s), invading their privacy.” This appeal followed.
In response to this office's Notification of Receipt of Open Records Appeal, Mr. MacDonald elaborated on the board's position. He argued that “an audio tape made for the convenience of the secretary of the board of education to allow him to prepare proper written minutes thereof is not in and of itself a public record.” Mr. MacDonald noted that Mr. Kelly's newspaper was notified of the special meeting, and that Mr. Kelly could have attended. Likening the audio tape to “internal scratch-pad notes,” he objected to Mr. Kelly's attempt to review the tape “which does not represent the official minutes of the board. . . .”
Continuing, Mr. MacDonald remarked that “things may have been said in open session which may not have been said had any other member of the public been present, including the press.” He noted that after the meeting was called to order, the students' parents were addressed by name, and asked whether they wished their children's disciplinary hearings to be conducted in closed session. The parents answered affirmatively. Citing OAG 81-135 and OAG 82-179, which confirm the board's right to maintain the privacy of the people involved in student discipline matters, Mr. MacDonald maintained that:
The disciplined issues were addressed in closed session, the students were disciplined appropriately, and the board believes their right to individual privacy is far greater than the public's right to know as advanced by Mr. Kelly. . . .
The minutes that were provided to Mr. Kelly accurately represent what occurred, while at the same time protects [sic] the privacy interests of the parent and child. . . .
For these reasons, Mr. MacDonald argued, further disclosure is not required.
We are asked to determine if the Fleming County Board of Education violated provisions of the Open Records Act in denying Mr. Kelly's request. For the reasons set forth below, and upon the authorities cited, we conclude that the board erred in asserting that the audio tape of the open portion of its special meeting is not a public record. We further conclude that although its response was procedurally deficient, the board successfully argues that the identities of the students and their parents may be withheld under the privacy exception codified at KRS 61.878(1)(a). Thus, while the audio tape is a public record for purposes of the Open Records Act, and must be disclosed, we find that the board may delete the names of the students and their parents pursuant to KRS 61.878(1)(a) and KRS 61.878(4).
The term “public record” is defined at KRS 61.870(2) as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
In OAG 92-111, this office departed from an earlier line of opinions and held that an audio tape of a public meeting “falls squarely within the parameters of the definition, and must also be treated as a public record if the tape is prepared, owned, used, or in the possession of the public agency and is made at the direction of the agency.” OAG 92-111, p. 2. Acknowledging that we had previously held that an agency need not release audio tapes of its meeting because the tapes were of a preliminary character and “incident to the preparation of its official minutes,” our analysis of authorities from other jurisdictions, coupled with the strong Open Records Act policy favoring disclosure, led us to conclude that the tape “may not properly be treated as a preliminary document, but should be made available to the public upon request.” [1] See also, 93-ORD-34; 94-ORD-44; compare, 92-ORD-1058; 93-ORD-105.
Thus, we do not share the Fleming County Board of Education's view that the audio tape of open session of its November 25 special meeting is not a public record. Based on the authorities cited, and the reasoning articulated therein, we find that the board withheld the tape in error, and must make arrangements for Mr. Kelly to review it. [2] We do not believe, however, that he must be afforded unrestricted access to the tape. Although we reject the notion that the Fleming County Board of Education may withhold a public record because it contains statements that would not have been made if the board had been aware that the public would have access to it, we are persuaded that the board has established that disclosure of the identities of the students and their parents constitutes a clearly unwarranted invasion of personal privacy, and that references to those individuals in the audio record may be deleted. KRS 61.878(4). [3]
This office has long recognized that records relating to student discipline and “disciplinary proceedings are protected from public disclosure by KRS 61.878(1)(a). . . .” OAG 83-427, p. 3; OAG 89-38. These opinions are premised on the notion that the privacy rights of students in such matters are superior to the public's right to know that the board is discharging its duties relative to the imposition of discipline, and find support in KRS 61.810(1)(f). The latter provision authorizes, inter alia, school boards to conduct student disciplinary hearings in a closed session, and is purposed “to protect the reputation of individual persons, in this case the student or students involved.” OAG 81-135, p. 3.
Moreover, this office has consistently recognized that student education records, including records of student discipline, are excluded from public inspection by operation of the Family Educational Rights and Privacy Act, 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k). [4] See, e.g., OAG 80-471; OAG 83-427; 96-ORD-233. This law is aimed at preventing violation of student and family privacy rights by providing for the termination of federal funds to agencies or institutions which, inter alia, release student education records (or personally identifiable information contained therein) without the written consent of the student's parents. For purposes of the Family Education Rights and Privacy Act, the term “education records” is defined 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.” 20 USC § 1232g (a)(4). There can be little doubt that a record, or portion of a record, identifying the student who is the subject of the disciplinary hearing falls within the scope of this definition, and must be excluded from public inspection. A record, or portion of a record, identifying the student's parents or other family members is treated as “personally identifiable information,” and thus also excluded from inspection. 34 CFR Sec. 99.3.
To the extent that the identities of the students disciplined, and their parents, are protected from disclosure by operation of KRS 61.878(1)(a), KRS 61.878(1)(k), and 20 USC § 1232g, we believe that the board may delete those names from the audio tape before releasing it to Mr. Kelly. This holding is consistent with KRS 61.878(4), which provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Nevertheless, we do not believe that the fact that the audio tape contains excepted material authorizes the board to withhold the tape in its entirety. We therefore conclude that the Fleming County Board of Education violated the Open Records Act in denying Mr. Kelly's request, and must release the audio tape of the open session of its November 25 special meeting to him subject to the terms articulated above.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to 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.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
1480
Distributed to:
William Kelly
Staff Writer
The Ledger-Independent
P. O. Box 518
Maysville KY 41056
Wendell Johnson
Superintendent
Fleming County Public Schools
211 W. Water Street
Flemingsburg KY 41041
Thomas L. MacDonald
Attorney at Law
MacDonald & Walton
105 North Main Cross Street
Flemingsburg KY 41041-1396
[1] At page 4 of OAG 92-111, we issued the following precautionary note: We do not mean to suggest that an agency is required to make and keep on file a recording of its public meetings under the Open Records Act. Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is not a public record). Our holding is limited to those instances when the agency directs that a tape be made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly. Nothing in this opinion should be construed to modify our previous holdings on tapes or minutes of executive or closed sessions of public agencies.
[2] There is nothing in the record that suggests that the disputed tape was not made at the board's direction, and purchased with agency funds.
[3] The board does not specifically cite KRS 61.878(1)(a) in support of its denial of Mr. Kelly's request, but advances a compelling argument, under that exception, that the students' right of privacy outweighs the public's interest in disclosure. Failure to cite the specific exception authorizing nondisclosure constitutes a violation of KRS 61.880(1). We urge the board to review this provision to insure that future responses conform to the Open Records Act.
[4] KRS 61.878(1)(k) permits a public agency to withhold, “all public records or information the disclosure of which is prohibited by federal law or regulation.”