We are still short on facts and long on speculation in the aftermath of the Hazard High School "Man Pageant" controversy.

This is due, in no small part, to the implausible and ostensibly unsupportable position taken by Hazard Independent Schools Superintendent Sondra Combs.

In today's Courier Journal commentary, Joe Gerth provides this update:

"Superintendent Combs told The Courier Journal on Wednesday that 'the incident is being investigated and once the investigation is complete, appropriate action will be taken' but declined to share more details.

"She said in a later statement the district had handed down a punishment or punishments but is 'not allowed to disclose any further information regarding the specifics of the discipline because it is a 'personnel matter.'

(Not a temporary or emergency disciplinary measure while the investigation proceeds, mind you.)

"Kentucky law provides that school district superintendents are required to report instances of educator misconduct to the Education Professional Standards Board (EPSB). Therefore, if the investigation finds a certified educator likely violated the Kentucky Educator Code of Ethics, the superintendent is required to report this to the EPSB for potential action."

https://www.courier-journal.com/story/opinion/columnists/gerth/2021/10/…

From Gerth's update, we can deduce that the investigation was brief, the disciplinary reckoning was swift, and that both are shrouded in secrecy.

Asked for details about who was disciplined and the discipline imposed, Combs maintained that "as it is a personnel matter, we are not allowed to disclose any further information regarding the specifics of the discipline."

(Only if students were disciplined — ironic if true and not a "personnel matter" — would the Family Educational Rights and Privacy Act — support her statement. High school officials cannot hide behind FERPA.)

We do not know on what legal basis Combs asserts that she is "not allowed to disclose any further information," but we do know that — to the extent records exist documenting the investigation and discipline imposed — those records are, indeed, "umm . . . public records."

https://twitter.com/chrisbradyky/status/1453485063211978752?s=11

I suspect this is lost on no one, perhaps not even Superintendent Combs and district counsel, but it is troubling to learn that she has chosen to obfuscate when the occasion demands transparency.

In a nutshell: The privacy exception to the open records law does not shield public employee misconduct occurring in a public workplace during public work hours from public scrutiny even if that conduct is inconvenient or embarrassing.

The overwhelming weight of legal authority in Kentucky supports this position.

This is particularly true for those public employees — like school officials and law enforcement officers — who are uniquely vested with the public trust.

Thus, not long after the open records law was enacted the Court of Appeals recognized, "The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon." City of Louisville v Courier Journal and Louisville Times.

https://casetext.com/case/city-of-louisville-v-courier-journal-etc

Later, in Palmer v Driggers the Kentucky Court of Appeals observed that a complaint against a police officer " presents a matter of unique public interest."

The court continued:

"At the time of the complaint, Palmer was an Owensboro police officer, who was sworn to protect the public. The complaint charged specific acts of misconduct by Palmer while he was on duty. Since the question of the disclosure of the details of this alleged misconduct is the reason for this appeal, we will generally describe the alleged misconduct as Palmer neglecting his duty to the public by having an inappropriate relationship with another police officer while on duty.

"We believe the public has a legitimate interest in knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct. While the allegations of misconduct by Palmer are of a personal nature, we hold that the public disclosure of the complaint would not constitute a clearly unwarranted invasion of Palmer's personal privacy."

https://caselaw.findlaw.com/ky-court-of-appeals/1125917.html

In 2021's University of Kentucky v The Kernel Press, Inc., the Kentucky Supreme Court rejected UK administrators' efforts to hide — behind FERPA and the open records privacy exception — public records relating to a professor who sexually harassed students.

With regard to the federal privacy act, the Court declared, "The FERPA 'education record' exclusion was clearly not intended as an 'invisibility cloak' that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case."

With regard to the broader personal privacy exception in the state open records law, the Court recognized:

" Kentucky citizens have a strong interest in ensuring that public institutions, including the University, respond appropriately to accusations of sexual harassment by a public employee. To the extent the personal privacy exemption is claimed [for the professor's victims] as to a particular document, the trial court must balance that interest against the strong public interest in knowing how promptly and effectively the University handled this matter."

https://casetext.com/case/univ-of-ky-v-kernel-press-inc

The ruling in The Kernel case applies with equal force to all public schools.

The Attorney General's open records decisions echo this view.

For example, in 18-ORD-059 the Attorney General remarked, "The privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action."

https://ag.ky.gov/Resources/orom/2018/18ORD059.doc

The decision relies on multiple earlier open records decisions.

An argument based on the preliminary documents exceptions also fails. The discipline to which Superintendent Combs refers is final as to the school district, even if appeals are taken or additional discipline by a separate agency lies ahead.

https://ag.ky.gov/Resources/orom/1995/95ORD047.htm

We trust that someone has submitted a formal open records request to the Hazard Independent Schools in the hope of dislodging any responsive records or ascertaining on what possible basis the records can legally be withheld.

Supporters of the "Man Pageant," as well as detractors, surely agree that sunlight is the best of disinfectants.