Request By:
IN RE: Jon L. Fleischaker/Kentucky Department of Education
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Department of Education's (DOE's) partial denial of Mr. R. G. Dunlop's August 24, 1992, request to inspect certain records in the Department's custody. Those records are identified as:
The full name of each Jefferson County Public School [JCPS] teacher who has been terminated, or who has resigned under threat of termination, from the 1981-82 school year to the present; the school to which each teacher was assigned at the time of separation from the school system; the subject matter being taught by each teacher at the time of separation; the date of separation; and the letter, memorandum or other supporting documents submitted by the JCPS superintendent, the JCPS board of education or others in support of each personnel action.
Mr. Dunlop is a staff writer for The Courier-Journal, and his request was made under the Kentucky Open Records Act.
In a letter dated August 27, 1992, Ms. Florence S. Huffman, an attorney attached to the Department of Education's Office of Legal Services, responded to Mr. Dunlop's request. Relying on KRS 61.878(1)(g), she partially denied his request, explaining that "records of active/pending revocation cases presently pending before the Education Professional Standards Board are closed from public inspection until final agency action." She released those records relating to revocation cases dating back to the 1981-82 school year which had been finalized by the State Board for Elementary and Secondary Education under an earlier regulation, with the exception of certain unspecified documents deemed "preliminary" under KRS 61.878(1)(h) and (i). Those records are not in dispute.
On behalf of his client, The Courier-Journal, Mr. Jon Fleischaker appealed to the Attorney General pursuant to KRS 61.880(2), DOE's partial denial of Mr. Dunlop's request. It is his position that KRS 61.878(1)(g) "does not apply to all of the documents contained in the files of the state DOE's pending cases." (Emphasis in original). He explains that during the meeting between Ms. Huffman and Mr. Dunlop at which Mr. Dunlop inspected the nonexempt records, Ms. Huffman indicated that each file contains a "complaint" filed by the JCPS superintendent with DOE relative to the subject teacher. That "complaint" is the notice required by KRS 161.120(2)(a), and consists of the name, social security number, position name, and position code of any certified school employee whose contract is terminated or not renewed, for cause, who resigns from or otherwise leaves, a position under threat of contract termination or non-renewal, for cause, who is convicted in a criminal prosecution, or who is known to have engaged in conduct which would reasonably be expected to warrant consideration for certificate revocation. That statute also requires the superintendent to "inform the Education Professional Standards Board in writing of the full facts and circumstances leading to the contract termination or non-renewal, resignation, or other absence, conviction, or otherwise reported actions or conduct of the certified employee . . ." KRS 161.120(2)(b). Pursuant to KRS 161.120(2)(c), the certified school employee must be given a copy of any such report and may file a written rebuttal.
Mr. Fleischaker argues that Mr. Dunlop is entitled to review the KRS 161.120(2)(a) "complaint/notice" and the KRS 161.120(2)(b) report for each of the active files. He observes:
Since the teacher involved has a copy of the 'complaint' or statutory notice required by KRS 161.120(2)(a) as well as the report submitted by the superintendent pursuant to KRS 161.120(2)(b), the State DOE may not rely on exemption (g) of the Open Records Law to deny Dunlop's request for access to these portions of the ten pending files identified by Huffman. Exemption (g) applies only '. . . if the disclosure of the information would harm the agency [State DOE] 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. ' KRS 61.878(1)(g). . . . Since the subject teacher already is aware of the nature of the specific information in the 'complaint'/statutory notice and the supporting report and documents, the State DOE cannot properly argue that disclosure to Dunlop of those same documents would harm the State DOE by revealing the identity of informants not otherwise known to the teacher or by premature release of information.
(Emphasis in original.) He requests that this Office issue a decision consistent with this view.
We are asked to determine if DOE properly relied on KRS 61.878(1)(g) in partially denying Mr. Dunlop's open records request. For the reasons set forth below, we conclude that DOE failed to meet its burden of proof relative to the cited exception. Therefore, the Department is directed to release the disputed records forthwith.
We begin by noting that KRS 61.880(1) contains specific guidelines for agency response to an open records request. That section provides that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " (Emphasis added.) Ms. Huffman's response relative to the active revocation cases consisted of little more than an invocation of the exception. She did not offer any explanation of how the exception applied to the records withheld.
This Office has taken the position that the mere invocation of an exception, without an adequate explanation of how the exception applies to the disputed records, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3). 92-ORD-1020. In order to successfully raise the exception codified at KRS 61.878(1)(g), an agency must establish that it is a law enforcement agency or an agency involved in administrative adjudication, that the disputed records were compiled in the process of detecting and investigating statutory or regulatory violations, and that the disclosure of the records 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.
The Department of Education's Education Professional Standards Board is an administrative agency charged with the duty of certificate revocation. It therefore satisfies the first and second parts of this three part test. However, no attempt has been made to establish that disclosure of the records would harm DOE by revealing the identity of informants or by premature release of information to be used in the proceedings to revoke certificates. DOE has failed to sustain its burden of proving that the records withheld fall within the parameters of the cited exception. We do not mean to suggest that none of the records contained in the active case files fall within the parameters of KRS 61.878(1)(g), only that DOE failed to sustain its statutory burden relative to this issue. We therefore conclude that DOE must release the superintendent's reports prepared pursuant to KRS 161.120(2)(a) and (b) to Mr. Fleischaker.
The Department of Education may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.