Request By:
Mr. J. D. Martin
Official Custodian of the Records
Fayette County Public Schools
701 East Main Street
Lexington, Kentucky 40502
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Mary Ann Roser has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect various records in the custody of the Fayette County Public Schools.
In a letter to you, dated March 22, 1988, Ms. Roser stated in part as follows:
Pursuant to the provisions of KRS 61.870, the Kentucky Open Records Act, I am requesting permission to examine all documents maintained by the Fayette County Schools relating to an investigation of a junior high school principal who hired someone lacking a valid teaching certificate.
I understand the matter was referred to Commonwealth's Attorney Ray Larson, who completed his investigation. I also understand that since the investigation by his office is closed, I am entitled to the records.
You replied to Ms. Roser in a letter dated March 24, 1988, and advised that her request to inspect documents was rejected. In your opinion, the matter of whether or not the Commonwealth's Attorney has completed the investigation is immaterial as to the obligation of the Board of Education to furnish the records in question. You also said that all the documents contain information of a personal nature and the public disclosure of such material would constitute a clearly unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a).
The privacy exception to public inspection upon which you are relying in part is apparently related to your reluctance to disclose documents pertaining to the discipline of staff members. You then cite sections of the Open Meetings Act concerning confidentiality of discussions pertaining to employee discipline.
A reference is made in your letter to the preliminary nature of some of the material which you state consists of "preliminary recommendations and preliminary memoranda in which opinions are expressed." This material, in your opinion, is excluded from public inspection pursuant to KRS 61.878(1)(h).
You concluded your letter to Ms. Roser with a reference to material which may be excluded from public inspection because it consists of opinions and legal advice from the attorney for the Board of Education of Fayette County to the Board of Education and the Superintendent of Schools. You maintain that such documents are protected by the attorney-client relationship.
Ms. Roser's letter of appeal to this office, received April 1, 1988, takes exception to your letter and maintains that she is entitled to inspect the records in question. She states she is entitled to inspect material pertaining to the disciplining of public employees. She also disputes your withholding of material on the basis of it being preliminary and your reliance upon the attorney-client privilege.
OPINION OF THE ATTORNEY GENERAL
The undersigned Assistant Attorney General has not seen the actual documents which you refused to make available for public inspection and you have not made a list of those documents involved. You have set forth four primary reasons to support your decision to deny access to all of the materials requested and this office can only respond to those four points.
This office on numerous occasions has dealt with the privacy exception to public inspection [KRS 61.878(1)(a)]. We have said that while the public has a right to know about those matters which are related to the governmental employee's public and work related activities, information unrelated to the employee's official job activities may be withheld. Copies of OAG 87-77 and OAG 87-70, dealing with privacy, are enclosed for your information and consideration. Disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. The exception to public inspection pertaining to privacy is not applicable to this situation.
In City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982), the Court dealt with those exceptions to public inspection set forth in KRS 61.878(1)(g) and (h). While the court did say that the public, upon request, has a right to know what complaints have been made and the final action taken against the public employee, those documents deemed to be preliminary to that final decision may be withheld from public inspection as preliminary documents pursuant to KRS 61.878(1)(g) and (h). OAG 87-32 and OAG 87-23, copies of which are enclosed, deal with the interpretation and application of those exceptions to public inspection pertaining to preliminary documents. These exceptions, however, do not extend to the document which sets forth the final action taken against the public employee.
This office has previously dealt with the "work product" concept and the attorney-client relationship relative to the Open Records Act and requests for documents under the Act. Records which are the work product of an attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure and are exempt from public disclosure under KRS 447.154 and KRS 61.878(1)(j) of the Open Records Act. The lawyer-client work product privilege has been recognized by the United States Supreme Court in a case discussed in OAG 81-246, copy enclosed, at page three. See also OAG 87-28 and OAG 81-291, copies enclosed.
Thus only those specific documents which actually involve the "work product" concept and the attorney-client relationship may be withheld from public inspection. Even from the general description of the records in question you have given all of the documents involved cannot possibly fit under these exceptions. Just because you have had legal representation concerning a particular matter does not mean that every document relative to that situation can now be withheld. See also KRS 61.878(4) concerning the duty and obligation of the public to separate the nonexempt material from the exempt material and make the nonexempt material available for public inspection.
KRS 61.878(1)(f) deals with an exception to public inspection while a matter is being investigated or while it is the subject of a judicial or administrative proceeding. In OAG 87-66, copy enclosed, at page five, we concluded that the denial of a request to inspect records was proper at that time as the investigation pertaining to the matter had not yet been completed and a determination had not yet been made as to whether legal action would be taken. Once the investigation has been completed and legal action has been completed or a decision has been made to take no legal action, the documents in question will be subject to public inspection unless excluded by another statutorily recognized exception to public inspection.
Thus in the situation with which we are concerned it does make a difference as to whether or not the Commonwealth's Attorney's Office has finished its investigation and handling of the matter. If the investigation has been completed and prosecution is completed or it has been decided not to prosecute, then the exception to public inspection set forth in KRS 61.878(1)(f) is no longer available.
In conclusion, it is the opinion of the Attorney General that the privacy exception to public inspection does not apply to the final disciplinary action taken against a public employee and the final action taken by a public agency against a public employee is a matter of public record. Those specific documents which actually involve the "work product" concept and the attorney-client relationship may be withheld from public inspection as can documents which are preliminary to the final decision of the public agency in an investigatory situation. The litigation exception ceases to apply when litigation has been completed or a decision has been made not to litigate.
As required by statute a copy of this opinion is being sent to the appealing party, Ms. Mary Ann Roser. Since the opinion has rendered findings and conclusions which are adverse to arguments advanced by both parties on some points, either or both of the parties may challenge this opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.