Request By:
Mr. Lonnie Anderson
Superintendent
Whitley County Board of Education
116 North Fourth Street
Williamsburg, Kentucky 40769
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. Robert L. Chenoweth has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his October 1, 1991, request to inspect certain documents in the possession of the Whitley County Board of Education. Specifically, Mr. Chenoweth requested access to:
Any complaint, report, memorandum, or letter made a part of the record in the matter of your bringing charges for the termination of teaching contract in the Whitley County Schools of Bob E. Shelley.
In addition, he asked to inspect any written communication made pursuant to KRS 161.120 and the minutes of the special meeting held on August 2, 1991, by the Whitley County Board of Education.
You partially denied Mr. Chenoweth's request in a letter dated October 4, 1991, relying on KRS 61.878(1)(a), (g) and (h). Although you released the affidavit of the Board of Education employee who witnessed the serving of the termination charges, Mr. Shelley's written resignation and the Board's minutes, you explained that the other records contained information of a personal nature, including "allegations of Mr. Shelley's private and personal lifestyle which are considered to be extremely private activities." In further support of your partial denial of Mr. Chenoweth's request, you invoked KRS 61.878(1)(g) and (h). You indicated that the records consisted of preliminary drafts, notes and recommendations "from staff and our Board Counsel."
In his letter of appeal to this Office, Mr. Chenoweth acknowledges receipt of the documents you released, and states that he has obtained a copy of the charges which you brought against Mr. Shelley. He argues that you improperly withheld the remaining documents under the privacy exception, codified at KRS 61.878(1)(a), in view of the strong public interest in disclosing disciplinary actions against public employees, which is reflected in OAG 91-41 and OAG 88-25. Additionally, he rejects your argument that any or all of these documents are exempt under KRS 61.878(1)(g) and (h). He asserts that the Court of Appeal's decisions in Kentucky State Board of Medical Licensure v. The Courier Journal and Louisville Times Co., Ky.App., 733 S.W.2d 953 (1984), and City of Louisville v. The Courier Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982), are dispositive of the issues raised by this appeal. It is his position that the acceptance of Mr. Shelley's resignation constitutes final agency action, and that the materials sought "should accordingly 'be deemed incorporated' as part of this final action. " With respect to the report furnished to the Education Professional Standards Board, Mr. Chenoweth maintains that it too constitutes final action "since the duty to report stems from the severance of Mr. Shelley's employment with that system."
Mr. Chenoweth asks that we review your decision to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that although your invocation of KRS 61.878(1)(a) to authorize nondisclosure of the disputed documents was improper, the documents Mr. Chenoweth seeks to inspect are exempt pursuant to KRS 61.878(1)(g) and (h).
OPINION OF THE ATTORNEY GENERAL
Among the documents which are exempt from the mandatory disclosure provisions of the Open Records Act are:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The tortured evolution of this exemption has been marked by repeated attempts to broaden its scope in a manner which is entirely inconsistent with the rule of strict construction mandated by KRS 61.882(4). The Attorney General has, however, consistently recognized that the privacy exemption cannot be invoked to protect a public employee against whom disciplinary action has been taken. Thus, in OAG 88-25, this Office opined, "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." See also , OAG 78-133, OAG 91-41. Accordingly, the public must be afforded access to records which reflect final disciplinary action against a public employee in matters pertaining to the performance of his public duties. There can be little doubt that the disciplinary action taken against Mr. Shelley, and the charges from which that action stems, relate to the performance of his public duties, and are not shielded from disclosure by KRS 61.878(1)(a).
We are not unmindful that the privacy interests of those students who first alerted the Board to Mr. Shelley's misconduct are also at stake. However, we have reviewed the documents to which Mr. Chenoweth has been denied access, pursuant to KRS 61.880(2), and find nothing in those documents which identifies any individual student or students. The records do not disclose the names of the students, and discusses, in general terms only, the nature of their allegations. Given the court's recent pronouncements on this question, we question whether the privacy exemption could be raised even if the students were identified. Kentucky Board of Examiners of Psychologists v. The Courier Journal and Louisville Times Company , No. 89-CA-1497-MR, June 8, 1990, (Mot. for Disc. Rev. granted August 29, 1990). The issue raised in the latter case centers on whether documents disclosing the identities of complaintants in a license revocation proceeding must be disclosed in light of the significant privacy interests which are implicated. In the instant appeal, no such issue is raised since the documents do not disclose the identities of the "complaintants. "
Turning to the other exemptions you invoke, to wit KRS 61.878(1)(g) and (h), we concur with Mr. Chenoweth in his view that the document which represents the final disciplinary action taken by Whitley County Board of Education, and any documents incorporated therein, cannot be withheld. KRS 61.878(1)(g) and (h) authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
While this Office, and the courts have recognized that documents which are internal preliminary investigative materials are exempt under statute and case law, such materials lose their preliminary characterization if they are adopted as part of the agency's final action. See , e.g. OAG 86-22; OAG 86-26; OAG 86-78; OAG 87-23; OAG 87-23; OAG 89-69; City of Louisville , supra; Kentucky State Board of Medical Licensure, supra. Thus, you properly released Mr. Shelley's letter of resignation and the Board minutes adopting same to Mr. Chenoweth. Since Mr. Chenoweth has obtained a copy of the charges against Mr. Shelley, we need not address the propriety of your refusal to provide him with a copy of those charges. Having reviewed the other documents which you identify as falling within the parameters of Mr. Chenoweth's request, which consist of a memorandum dated July 22, 1991, to the Whitely County Board of Education concerning the preferment of charges against Mr. Shelley, and an August 2, 1991, letter to the Office of Legal Services of the Kentucky Department of Education advising that agency of the action commencement of disciplinary action against Mr. Shelley, we conclude that these records were properly withheld under KRS 61.878(1)(h).
With respect to the report you prepared pursuant to KRS 161.120, it is our opinion that that document is also exempt. KRS 161.120(2)(a) and (b) impose a reporting requirement on superintendents of local school districts. Under those provisions, the superintendent must submit a written report to the Education Professional Standards Board when any certified school employee in his district "resigns from, or otherwise leaves, a position under threat of contract termination, or nonrenewal, for cause." The Professional Standards Board may then initiate proceedings to revoke that employee's certificate.
Such a report does not represent "final agency action" within the meaning of the authorities cited, but is more closely analogous to an internal affairs report. As the Court of Appeals noted in City of Louisville v. The Courier Journal and Louisville Times Comp. , supra at 659:
Internal affairs . . . 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.
It is the Professional Standards Board which determines what final action will be taken with respect to certificate revocation. Like Internal Affairs, the superintendent has "no independent authority to issue a binding decision . . . ." Accordingly, unless your report is adopted as part of the Board's final action, it remains preliminary.
In sum, it is the opinion of this Office that although KRS 61.878(1)(a) was not properly invoked to authorize nondisclosure of the disputed documents, you acted consistently with the Open Records Act in releasing certain documents which represent final agency action and in withholding certain preliminary documents, including your report to the Education Professional Standards Board. Unless and until that document is incorporated into the Board's final action, it may be treated as a preliminary record and need not be disclosed.
As required by statute, a copy of this opinion will be sent to the requester, Mr. Robert L. Chenoweth. The Whitley County Board of Education and Mr. Chenoweth may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).