dissenting.
My decision in this case hinges upon the answer to what appears to be a simple question: would disclosure of the statistical student discipline information sought by Foster and The News Enterprise make the identities of disciplined students “easily traceable”?1 If the answer to this question is “yes,” I believe the Family Educational and Privacy Act (FERPA) prohibits the Hardin County Schools from disclosing educational records which contain such “personally identifiable information.” If, however, the answer to this question is “no,” I believe no law prohibits the disclosure of such information and this Court should allow Foster and The News Enterprise to obtain the information under Kentucky’s Open Records Act.2
Although I reduce the salient issue in this case to a narrow question, I dissent from the majority opinion because I believe that question is largely a question of fact, and I can find no evidentiary record upon which this Court can attempt to review the trial court’s decision. While the determination of whether certain information is an “educational record” as defined under FERPA involves statutory interpretation, I believe the inquiry in this case, whether disclosure of a statistical compilation of student discipline data “would make the student’s identity easily traceable,” 3 requires this Court not to interpret a definition, but to engage in an inherently factual inquiry into the probable results of disclosure. This Court has recognized that determinations which require evaluations of degree are questions of fact despite their interpretive components:
Deciding whether the evidence presented proves misconduct “severe or pervasive” is not a question of law but a question of fact, albeit a question of ultimate fact. It is similar in nature to whether damages are excessive, whether negligence is gross, and to other complex issues with an interpretive component such as whether the design of a product is defective or professional negligence has occurred....
... [TJhe employer then argues that the issue whether “sexual harassment is severe or persuasive should be reviewed de novo ” because it is “dependent upon a mix of fact and law[.]” We agree that deciding whether evidence of sexual harassment rises to the level of “severe or pervasive” contains an interpretive component. But we do not agree that this means we should substitute our judgment on the issue for that of the jury and the trial judge. The interpretive component does not change basis character from a question of fact to a question of law.4
To determine whether the disclosure of this information will make student identities “easily traceable,” we must engage in a similar analysis. Other courts have recognized the factual nature of this very *872inquiry.5
I find myself troubled by the fact that three levels of the Court of Justice have now reached conclusions about whether the disclosure of certain information would allow others to “easily trace” that information to student identities, but not one judge has ever laid eyes on this statistical compilation. As this statistical information has not yet been compiled for court inspection, the opinions expressed by the courts below and those expressed today by the other members of this Court, require conjecture about the nature of this data. Although this case involves a tangible request for a specific statistical compilation, the conclusions reached in these opinions resolve the question presented by reference to “ifs” — i .e., “if the statistics compiled data from a large student body which affords a degree of anonymity ...” or “if they compiled data from a small elementary school with low student turnover .... ” Although my colleagues conclude correctly that our inquiry is situation-specific, I must decline the invitation to “imagine” a factual record which defines the situation before us on the basis of our own assumptions about the Hardin County school system and I cannot rely upon the factual conclusions which follow from these questionable assumptions. The only conclusion I feel comfortable reaching in this case is that release of this statistical compilation might make student identities easily traceable. I see no basis for this Court, or any court, to express a definitive opinion as to whether this information will actually make student identities easily traceable when that information exists, much like Schrodinger’s infamous cat,6 only as hypo-theticals and probabilities.
I believe we must remand this case to the trial court with instructions for it to order the appellant school system to prepare the statistical information requested by the appellees and deliver it to the trial court for an in camera inspection and determination of whether this actual information makes students’ identities easily traceable. As the appellants contend that *873the statistical disciplinary information makes student identities easily traceable because it can be “decoded” by examining accessible student enrollment and directory information, the trial court, or the parties, may request that such additional information be provided to assist the trial court’s factual determination and any subsequent appellate review. After the trial court reaches a conclusion, it should seal the statistical information within the record to provide the appellate courts with an evidentiary basis upon which to review the trial court’s ruling.
I recognize that, at the trial court level, without stipulating to the material facts, the parties entered into an agreed order stating that “there are no genuine issues of material fact,” Exactly how they reached this conclusion remains a mystery to me, as the only disagreement in this case concerns a fact question. In any event, this Court is not required to engage in make-believe and attempt to resolve this case solely as a question of law because the parties mistook the nature of the issue at the trial court level. While the parties to a case usually may settle the case upon any basis they desire, they cannot, by agreement, bind this Court, or any court, to resolve the issues in a case under a legally impossible standard. I cannot imagine that this Court would allow the litigants before it to stipulate that a given case be decided by a “best-of-three” match of rock-paper-scissors in the Chambers of the Supreme Court. In my opinion, for this Court to attempt to resolve this matter solely as a legal issue would be every bit as absurd.
. 34 CFR § 99.3(f).
. KRS 61.870 -.884.
. See supra note 1.
. Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 822 (1992) (emphasis added and citations omitted). See also Horton v. Union Light, Heat & Power Co., Ky., 690 S.W.2d 382, 385 (1985).
. See, e.g., Fish v. Dallas Independent School District, 31 S.W.3d 678, 682-683 (Tex.App., 2000) (noting that its ability to adjudicate the trial court’s denial of the plaintiffs' motion for summary judgment because the court was "not privy to the information contained in the school records” and finding that the trial court properly denied summary judgment to both parties because the evidence "did not conclusively show that the confidentiality of the students would not be compromised by the disclosure of the information as requested." Id.); Doe v. Knox County Board of Education, 918 F.Supp. 181, 184 (E.D.Ky.1996):
Thus, the question becomes whether the information disclosed in the due process hearing and reported by the Mountain Advocate was personally identifiable. The defendants argue that the information was not identifiable and that one who did not already know this student would not have learned the student based on the information in the newspaper article. The defendants may be correct, but that is an issue of fact that the jury must decide at trial.
Id.
. Erwin Schrodinger (1887-1961), a Viennese physicist instrumental in the early development of quantum mechanics, posed what has become known as the Schrodinger Cat Paradox. In this thought experiment, Schrodinger placed a cat inside of a box which contained an apparatus which would kill the cat fifty percent (50%) of the time and then, without opening the box, he pondered whether the cat was alive or dead. Schrodinger's proposed that, until he actually opened the box, the cat was neither alive nor dead, but rather existed in "wave form” and in both states, alive and dead, simultaneously. E. Schrodinger, "Die Gegenwartige Suitation iñ der Quantenmechanik [The Present Situation in Quantum Mechanics]” 23 Naturwissenschaf-tern 807, 807-812, 823, 844-849 (1935) (English translation by John D. Trimmer, 124 Proceedings of the American Philosophical Society 323-38 (1980)).