Request By:
Bernard J. Blau, Esq.
30 West Fourth Street
P.O. Box 368
Newport, Kentucky 41072
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter of August 27, 1987, addressed to the Attorney General, has requested this office to determine whether a particular item is subject to public inspection.
Mr. Mike Farrell, in a letter to you dated August 26, 1987, requested that you make available to him the tape recordings of a hearing held by the Newport Board of Education on August 21 and August 22, 1987. The request was made pursuant to Kentucky's Open Records Act (KRS 61.870 to KRS 61.884).
Standard operating procedure in such a situation, as dictated by KRS 61.880(1), would be for you to respond in writing to Mr. Farrell within three working days of the receipt of his letter and advise him as to whether or not his request would be granted. If you denied his request you would have to set forth in your letter of denial the specific exception to public inspection upon which you were relying. If Mr. Farrell were dissatisfied with your response and decision he could appeal to this office [KRS 61.880(2)] or he could appeal to the appropriate circuit court (KRS 61.882). If you had denied the request and if Mr. Farrell appealed that denial to this office we then would have to review the matter and issue an opinion as to whether you handled the denial properly under the terms and provisions of the Open Records Act.
Rather than responding to Mr. Farrell in writing you have written this office and have requested that we review the situation pursuant to KRS 61.880 and issue a written opinion. If we are to exercise our review or appellate function at this stage in the proceedings we will have to consider your handling of the matter as a denial of Mr. Farrell's request to obtain access to the tape recordings of the hearing in question. As far as we can determine you have not made the tapes available to Mr. Farrell nor have you responded specifically to his letter of August 26, 1987, with your answer to his request.
Your letter states that in July of 1987 the Newport Board of Education preferred charges against a particular teacher accusing him of "insubordination" and "conduct unbecoming a teacher" pursuant to KRS 161.790(1)(a) and (b). The hearing began on August 21, 1987, it resumed on August 22, 1987, and it concluded on August 25, 1987, with the entry of a decision concluding that the teacher was guilty of the charges made against him. It is not known at this point whether an appeal will be taken by the teacher.
Pursuant to the teacher's request the hearing was public rather than private. Representatives from the media including a Kentucky Post reporter attended portions of the hearing.
The Board of Education, as required by KRS 161.790(4), retained a court reporter to take down the testimony. During the first two days this was done by taperecording while on the last day it was done by use of stenographic equipment.
The teacher involved here has already filed a lawsuit against the Kentucky Education Association. Furthermore, the primary witness against the teacher in the contract termination proceeding pursuant to KRS 161.790 is apparently going to sue the teacher in another lawsuit.
In your opinion the issue is whether the right to the transcript is that of the teacher charged with the offense and whether he has the right to retain it within the principles of privacy or whether the records in question are excluded from the newspaper's right of inspection pursuant to KRS 61.878.
This office has received a letter from Mr. Farrell, dated August 28, 1987. He maintains that this situation (his request for access to the tape recordings) does not fall under any of the exceptions to public inspection and since KRS 161.790 does not specifically prohibit the release of the transcript to anyone, it is a public record subject to public inspection.
The undersigned Assistant Attorney General talked with you by telephone on September 9, 1987. You stated that as of that date the Board of Education does not have a copy of the hearing transcript and the tapes are in the possession of the court reporter whom the Board of Education engaged to report the hearing. You advised that a transcript of the hearing will be ready in a couple of weeks. When it becomes available you will make a copy available to the teacher. The Board of Education will not order a copy of the hearing transcript unless the teacher appeals the Board's decision to circuit court. The teacher has thirty days after his dismissal (August 25, 1987) to file an appeal.
OPINION OF THE ATTORNEY GENERAL
In connection with the termination of a teacher's contract and the hearing held pursuant to the charges made against a teacher, KRS 161.790(4) provides as follows:
"Upon receipt of the teacher's notice of intention to appear and answer such charges, the board of education shall issue such subpoenas as shall be necessary for the determination of the issues involved. The issue shall be heard at the time and place set and the hearing shall be public or private at the discretion of the teacher. Both parties may be represented by counsel and may require the presence of witnesses upon subpoena. Each witness shall be required to take oath or affirmation before an officer of the board of education. The board of education shall provide for a stenographic report of the proceedings and furnish the teacher with a copy. Upon completion of both sides of the case the board of education may by a majority vote dismiss the teacher or may defer its action for not more than five (5) days."
Pursuant to these provisions the teacher elected to have a public hearing which is not inconsistent with KRS 61.810(6), a section of the Open Meetings Act dealing with exceptions to open meetings. While that section authorizes a closed hearing where the possible dismissal of an employee is involved, it does not restrict the employee's right to a public hearing if he so requests. The Board of Education provided for a reporter to transcribe the proceedings and the Board will make a copy of the transcript available to the teacher when it is received from the reporter.
KRS 161.790(6) sets forth the teacher's right of appeal and the Board of Education's obligation to file with the court a transcript of the original notice of charges and a transcript of all evidence adduced at the hearing before the Board if there is an appeal. At this point no appeal has been taken, the Board does not have a copy of the hearing transcript and the court reporter has the tapes. While the Board will furnish a copy of the transcript to the teacher when it becomes available, the Board will not obtain any other copies of the hearing transcript unless its dismissal order is appealed by the teacher.
The Board of Education is a public agency as the term is defined in KRS 61.870(1) of the Open Records Act. In connection with whether the tapes are public records note the definition of that term as set forth in KRS 61.870(2):
"'Public record' means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs, or operations funded by state or local authority." (Emphasis supplied).
Although the tapes are in the possession of the reporter rather than the school board, the hearing from which the tapes were made was conducted by a public agency and involved an employee of a public agency and an agency and a person who received public funds. Thus, the tapes, for purposes of the Open Records Act, are public records.
KRS 61.878(1)(a) through (j) set forth those public records which may be excluded from public inspection in the absence of a court order authorizing inspection. KRS 61.878 (1)(a) concerns public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy. The hearing in this situation involved a person's fitness to be a public employee and, furthermore, the person requested that he receive a public hearing. See OAG 87-37, copy enclosed, dealing with the right of privacy and the inspection of public records.
KRS 61.878(1)(f) concerns agency records involved in administrative or judicial proceedings. This matter has not yet been appealed to the circuit court so there have been no judicial proceedings. While there has been an administrative proceeding, that has been completed. In addition, agency records are not the subject of this request to inspect. The request concerns the tapes of the hearing before the Board of Education.
KRS 61.878(1)(j) pertains to the exclusion from public inspection of records the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly. Neither KRS 161.790 nor any other statute that we are aware of makes the hearing transcript or tapes from which the transcript will be produced confidential.
It is, therefore, the opinion of the Attorney General that the tapes of a hearing concerning a teacher contract termination proceeding conducted pursuant to KRS 161.790 should be made available for public inspection under the Open Records Law even though the tapes are in the possession of the reporter-transcriber rather than the Board of Education as the teacher requested a public hearing and the matter has not reached the courts.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Mike Farrell. If you or the public agency decide not to comply with the findings and conclusions set forth in this opinion, proceedings challenging the opinion may be instituted in the appropriate circuit court pursuant to KRS 61.880(5).