Request By:
Robert L. Chenoweth, Esq.
Bryan, Fogle & Chenoweth
KSBA Building
Route #3, Box 96-2
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Sara L. Pratt, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of her request to inspect various records and documents in the custody of the Marion County School System.
In her letter to the Principal of the Marion County High School, Ms. Pratt made the following requests for access to documents.
"1. All information, written statements or affidavits, tape or video recordings, reports, summaries of information relating to the assault/sexual abuse/stripping of April Bell at Marion County High School in March/April, 1988.
2. All disciplinary records relating to April Bell."
You replied to Ms. Pratt in a letter dated May 16, 1988. You advised her in part as follows:
"In compliance with the Kentucky Open Records Act, enclosed are photocopies of the student record file for April Bell and also photocopies of all information included in her school disciplinary folder. Access to any other information relating to the first numbered paragraph of your letter is hereby denied. The statutory basis for the denial is as follows:
(a) KRS 61.878(1)(a)
(b) KRS 61.878(1)(g)
(c) KRS 61.878(1)(h)
(d) KRS 61.878(1)(i)
(e) KRS 421.210(4)."
At page two of your letter to Ms. Pratt you set forth your explanation as to how the exceptions to public inspection you cited applied to the records and documents withheld in this particular situation. In support of your decision you also cited the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) and the implementing regulations, 34 C.F.R. § 99 as well as the cases of
Ky. St. Bd. of Med. v. Courier Journal, Ky.App., 663 S.W.2d 953 (1983) and
City of Louisville v. Courier-Journal, Etc., Ky.App., 637 S.W.2d 658 (1982).
Ms. Pratt's letter of appeal to this office, received May 25, 1988, asks us to review your decision relative to her requests. She states that the records requested represent in part statements made by teachers and students following an incident on school property. She further maintains that your denial is too broad and that the statement made by the female student involved should be made available to her or to her representative.
Ms. Pratt also states that there were a series of final documents prepared with respect to disciplinary hearings for the male students involved in the matter. The hearings were cancelled and since the investigation has been completed those documents which are not preliminary should be made available for inspection. Ms. Pratt concludes with an allegation that the documents reflecting statements made by teachers during the investigation are not subject to exclusion from inspection.
The undersigned Assistant Attorney General talked with you by telephone on June 1, 1988. You advised that subsequent to your letter of May 16, 1988, to Ms. Pratt, you learned of the existence of a statement by the female victim. You said that particular document would be made available to Ms. Pratt. There are no written documents setting forth the final decision There are no written documents setting forth the final decision or position of the school system relative to this matter. While the hearings involving the male students were not held, oral agreements were reached relative to the disposition of fcharges and accustions made them and a "memorandum of understanding" is in the process of being prepared.
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 are those described in KRS 61.878(1)(g) and (h):
"(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 OAG 85-90, copy enclosed, we concluded that the denial of a request to inspect the letter of a disciplinary recommendation from a school principal to the Board of Education was proper because it is a preliminary document expressing opinions.
This office said in OAG 86-19, copy enclosed, that the public agency's denial of a request to inspect the memorandum of an officer conducting a background review of an applicant, which contained the investigating officer's opinions and recommendations which contained the investigating officer's opinions and recommendations as well as the opinions and evaluations of the people he interviewed, was proper as such material may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). See also OAG 84-249, copy enclosed, to the effect that statements of witnesses obtained during an investigative proceeding may be excluded from public inspection.
In OAG 86-26, copy enclosed, this office said that the public agency's denial of a request to inspect documents consisting of notes, intra office memoranda and investigative reports, setting forth opinions, observations and recommendations of agency personnel, which do not represent the agency's final decision on the matter, was proper as such material may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
In that same opinion (OAG 86-26) we referred to KRS 61.884 which provides, "Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878." KRS 61.878, of course, sets to the provisions of KRS 61.878." KRS 61.878, of course, sets forth those documents which may be excluded from public inspection authorizing inspection. in the absence of a court order authorizing inspection.
A person, therefore, is entitled to inspect a document entitled to inspect a document in which he is mentioned unless the document is exempt from inspection under the Open Records Act. The right to inspect public records under KRS 61.884 would not apply if the records consist of preliminary drafts, notes and correspondence with private persons (other than a notice of final action) as set forth in KRS 61.878(1)(g) or if the records constitute preliminary memoranda expressing opinions and recommendations as set and recommendations as set forth in KRS 61.878(1)(g). The preliminary status of the documents exempts them from inspection even by a person who is mentioned in those documents.
KRS 61.878(1)(i) provides that, "All public records or information the disclosure of which is prohibited by federal law or regulation" are to be excluded from public inspection. The "Family Educational and Privacy Rights" Act (20 U.S.C.A. § 1232g.) sets forth provisions relative to the prohibition against the release of records pertaining to students in the adsence of written consent of the parent or an appropriate court order.
The privacy exception to public inspection [KRS 61.878(1)(a)] is discussed in OAG 87-70, copy enclosed, pages 3 to 5. If the materials and documents involved here come within the principles set forth in that opinion they may be withheld from public inspection pursuant to KRS 61.878(1)(a).
Before concluding we direct your attention and that of the appealing party to OAG 85-119, copy enclosed, at page three, where we said in part that, generally, a public record is either open to public inspection by any person or it may be withheld from all persons under one of the exceptions set forth in KRS 61.878. This often means that the Open Records Act cannot be used in lieu of discovery procedures provided by the Rules of Civil Procedure.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect documents consisting of information, written statements, recordings, reports and summaries of information pertaining to an investigation by school authorities of an incident involving students on school property is supported by exceptions to public inspection set forth in KRS 61.878(1)(g), (h), and (i) of the Open Records Act and the Federal Family Education and Privacy Rights Act.
As required by statute, a copy of this opinion is being sent to the appealing party, Sara L. Pratt, Esq., who has being sent to the appealing party, Sara L. Pratt, Esq., who has a right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.