The Courier Journal reports that the Oldham County Schools angered parents last month by publishing "a list of open records requests it had received this year that contained names as well as sensitive information about some students."
"The list contained the names of each person who has asked to inspect district records from July 2022 to Sept. 18, 2023, as well as their requests," reporter Krista Johnson explained. "The requests included the names of three different students who were described as either sexual or physical assault victims. At least one is a foster child. The list also included the names of three other students and the home address of a former employee."
The controversy follows recent reports that the "firing of its longtime attorney has led to increased costs for the [Oldham County School] district, which is now spending nearly five times as much per hour for counsel."
"A large portion of [contract counsel Eric] Farris' work, according to [Superintendent Jason Radford], was due to open records requests submitted by [the district's former general counsel]."
Were the requesters' objections to the posting of the Oldham County School District's "Open Records Report" justified?
AN OPEN RECORDS REQUEST IS A PUBLIC RECORD ACCESSIBLE TO THE PUBLIC BY MEANS OF AN OPEN RECORDS REQUEST
No one questions the district's general duty to release an open records request if that request is the subject of a subsequent open records request. Although not an issue regularly presented in an open records appeal, the Kentucky Attorney General determined in a 1992 open records decision that the University of Louisville violated the open records law in denying a professor's open records request for an earlier open records request submitted by The Courier Journal.
Acknowledging a potential chilling effect on open records requesters, the Attorney General reasoned that public agencies are duty bound to comply with open records laws and that access to the earlier request advanced the public's right to know that the public agency properly discharged its statutory duties under the law. The Attorney General rejected the university's reliance on the exception for "correspondence with a private individual" in the very public arena of an open records dispute.
Ky. Op. Atty. Gen. 92-ORD-1440 (Ky.A.G.), 1992 WL 541075
A few years later, the Kentucky Supreme Court suggested that, if feasible, public agencies should notify individuals -- whose privacy interests are affected by disclosure of the public records identified in an open records request -- about that request to permit the individuals to challenge release of the requested documents if they object to disclosure.
Past attorneys general regularly released the open records file maintained by the office in response to an open records request for access to the file -- which included the request, response, supplemental response, associated correspondences, and the resulting open records decision.
(Given his expansive interpretation of the open records exception for "correspondence with private individuals" it is not altogether clear how the current attorney general would respond to such an open records request to his office -- or resolve an appeal involving another public agency's denial of a request to that agency for an open records request.)
And MuckRock, a nonprofit formed in 2010 to "help users file, track, and share public records requests at the state, local, and federal levels within the United States," reminds requesters who avail themselves of its assistance that public record requests "are 'public acts,' in the sense that other people can see what you request, when you requested it, and any other information you put in the letter."
The "public act" of submitting an open records request is not, and can not be, conducted behind a wall of secrecy.
"PROACTIVE" OR "AFFIRMATIVE" DISCLOSURE OF NONEXEMPT PUBLIC RECORDS IS AN ACCEPTABLE -- EVEN DESIRABLE -- PRACTICE
Increasingly, public agencies are engaging in the practice of proactive disclosure of public records that do not contain statutorily protected (exempt) information. This eases the burden on the agency to respond to the same open records requests, and produce the same records, multiple times. It also eases the burden on the public to submit individual open records requests. We see proactive disclosure in the Kentucky transparency website found at https://transparency.ky.gov/Pages/index.aspx, Louisville's transparency page found at https://louisvilleky.gov/government/transparency, and, at a more granular level, the Lexington's Police Department's transparency page found at https://www.lexingtonky.gov/police-transparency.
In contrast to proactive disclosure, reactive disclosure is the traditional process by which a public agency fulfills its statutory duty to respond (react) to open records requests under Kentucky's open records law and to disclose all nonexempt records.
NEITHER FISH NOR FOWL
The Courier Journal requested records confirming the volume of open records requests that accounted, in part, for a dramatic increase in the Oldham County School District's attorneys fees.
The district responded by releasing to The Courier an "Open Records Report" prepared, it said, in response to a board member's two months old verbal request for a report that it posted on the district website six days after The Courier's request.
This was neither proactive nor reactive disclosure. It did not satisfy the district's legal obligation to make timely disclosure of nonexempt public records (the open records requests themselves -- not an "Open Records Report" containing unexplained redactions) in reaction to The Courier's request. Nor, it can be argued, did it satisfy the kind of broad public interest typically associated with proactive disclosure of nonexempt information.
The district's response was neither fish nor fowl.
Not surprisingly, the district's decision to publish the Open Records Report evoked a strong public response -- especially as originally posted in an unredacted format that included the names of students described as victims of sexual or physical assaults and a student in foster care, as well as, in some cases, home addresses.
Requesters -- some of whom were subsequently criticized by district supporters -- questioned the district's motives.
There are any number of possible motives for the district's decision to post the Open Records Report -- some more plausible than others.
Without further evidence -- and/or additional open records requests for district communications
concerning the decision to post the Report -- we are left to speculate.
Some have suggested that the district's goal was to silence the requesters and discourage further requests. It is not an unreasonable inference to draw on these unusual facts, but no concrete evidence has been produced that verifies this supposition.
What is clear is that the Oldham County School District exercised poor judgment in posting the unredacted Open Records Report, and, when challenged, in hastily circling the wagons to defend its action and protest its innocence.
An open records requester's motive in filing an open records request is irrelevant to a public agency's statutory duty to make timely "reactive" disclosure of all nonexempt public records requested. But a public agency's decision to "proactively" disclose information of limited public interest -- some of it sensitive if not statutorily exempt -- will inevitably raise questions about the reasonableness (and fairness) of the agency's motives.
("We state at the outset that our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request.")
Absent further proof establishing the Oldham County School District's motives, we are left to draw our own conclusions.