Request By:
William E. Sloan, Esq.
Security Trust Building
Lexington, Kentucky 40507-1285
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
John G. McNeill, Esq. has apparently appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Board of Education of Fayette County. A letter to you from him dated March 30, 1987, contained a sentence requesting this office's opinion relative to "your stand on privilege." Normally a person seeking to file an appeal under the Open Records Act with this office corresponds directly with us. However, where there may be some doubt as to whether an action taken constitutes an appeal we would rather resolve the doubt in favor of an appeal.
In a letter to Dr. Ronald E. Walton, the Superintendent of the Fayette County Public Schools, dated March 11, 1987, Mr. McNeill requested in part that he be furnished with copies of documents relative to a teacher's recommendation that his client-teacher not be retained by the school system. He also wanted a list of all persons who might have pertinent facts concerning "charges" against his client-teacher. He concluded with a request for a copy of the "policy and procedures for the Fayette County Public School system, a copy of Ms. Tucker's complete personnel file and a copy of the pertinent policies and procedures for termination of teachers. "
As legal counsel for the Board of Education of Fayette County you replied to Mr. McNeill in a letter dated March 13, 1987. You stated that an assistant superintendent had recommended that Mr. McNeill's client-teacher not be retained by the school system but the Superintendent of Schools, Dr. Walton, has not yet made a final decision on the matter. If the Superintendent decides to recommend to the Board of Education that Mr. McNeill's client's contract be terminated then, pursuant to KRS 161.790, specific and detailed charges will be furnished to that teacher and to Mr. McNeill and a date for a hearing before the Board of Education will be set. You further said that in the interim this matter is proceeding as an administrative investigation and much of the material relating to it consists of preliminary recommendations and preliminary memoranda in which opinions are expressed. Such material is exempt from inspection pursuant to KRS 61.878. However, once the Superintendent makes his decision, appropriate information will be made available upon request. Your letter also stated that you could not furnish a copy of the pertinent policies and procedures for the termination of teachers as there are no such policies and procedures since termination is governed entirely by KRS 161.790.
In a letter to you dated March 30, 1987, a copy of which was directed to this office, Mr. McNeill, among other things, took issue with your conclusion that since an administrative investigation is underway, the information regarding allegations against his client is privileged at this time. That same letter, on page two, included the following sentence: "As to the other requested documents, by copy of this letter to the Attorney General we are requesting his opinion as to the merits of your stand on privilege."
The undersigned Assistant Attorney General talked with you by telephone on April 8, 1987, and you stated in part that the Superintendent has not yet made a decision relative to a recommendation to the Board to renew or terminate the contract of the teacher in question. The Superintendent has been gathering and evaluating data as a result of the in-house investigation.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection of such documents are those described in KRS 61.878(1)(f):
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
In OAG 86-81, copy enclosed, we referred to an earlier opinion of this office to the effect that while a matter is being investigated the entire investigative file may be excluded from public inspection pursuant to KRS 61.878(1)(f). See also OAG 83-425, copy enclosed, at page two, where we said that complaints and investigatory material of pending administrative or law enforcement adjudications are exempt from public inspection.
Thus until the Superintendent and his staff complete the investigation of the matter and he makes his decision relative to what recommendation he will present to the Board of Education (retention of the teacher or the termination of her contract), the entire investigatory file pertaining to the matter may be kept confidential. If the Superintendent recommends that the contract be terminated the provisions of KRS 161.790 will have to be followed and adhered to no matter what may be withheld pursuant to KRS 61.878(1)(f) during the ensuing administrative and judicial proceedings. If it is recommended that the contract be renewed the exceptions to public inspection set forth in KRS 61.878(1)(f) would not apply as there will be no administrative or judicial proceedings and unless the material is excludable under some other exception to public inspection it would have to be made available for public inspection.
Among the additional public records which may be excluded from public inspection in the absence of a court order requiring inspection are those records described in KRS 61.878(1)(g) and (h) as follows:
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended; "
In connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) as follows:
"It is the opinion of this Court that subsections (g) and (h) quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
"Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."
At page 660 of its opinion in the City of Louisville case, supra, the Court summarized as follows:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
In OAG 86-22, a copy of which is enclosed, we concluded that the public agency's denial of a request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting in part of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers, was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). The complaint which initially spawned the investigation and the report of the final action taken or the final decision reached are subject to public inspection. See also OAG 86-78 and OAG 86-26, copies of which are enclosed, dealing with the permissible exclusion from public inspection of those documents coming within the provisions of KRS 61.878(1)(g) and (h).
In addition, we direct your attention to the case of Kentucky State Board of Medical Licensure v. Courier Journal, Ky.App., 663 S.W.2d 953 (1983), where the Court said that if documents such as certain letters, correspondence or reports were merely internal preliminary materials, they would be exempt from inspection under the statute and the principles set forth in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982).
Thus, it is the opinion of the Attorney General that your denial of the request to inspect and copy documents pertaining to an investigation of a teacher, consisting of preliminary recommendations and preliminary memoranda in which opinions are expressed was proper as such documents do not set forth the final decision of the Board of Education and the Superintendent relative to the teacher in question.
As required by statute a copy of this opinion is being sent to the requesting party, John G. McNeill, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).