Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Christian County School System's response to the April 28, 1998 open records request of E. L. Gold, a staff writer with the Kentucky New Era , to inspect records relating to final action taken by the school system in suspending a teacher of the system without pay. Specifically, Mr. Gold requested the following:
1. Copies of all complaints filed against Alex Shearer.
2. Copies of all documents collected by the school system in its four-month investigation of Alex Shearer.
3. Copies of all documents relative to disciplinary action, including but not limited to reassignments, suspensions and reductions in pay, taken as a result of the complaints requested above.
4. Copies of all documents or correspondence informing Alex Shearer or his attorney of the decisions made or actions taken relative to the complaints above.
5. Copies of all correspondence by or between the school system and the Professional Standards Board of the state Department of Education concerning the complaints above, including, but not limited to, reports of complaints, requests for tribunal hearings, recommendations by the Standards Board and documents setting time, place and public accessibility of tribunal hearings.
By letter dated May 1, 1998, James C. Jury, Superintendent, Christian County Public Schools. Responded to Mr. Gold's request, stating:
Attached hereto for your benefit is a copy of Findings of Fact, Conclusions of Law and Final Order of the three member tribunal conducted April 29-30, 1998, at the central offices of Christian County Board of Education which will respond and answer a portion of the information sought by you in paragraph one through five of your request.
Pursuant to KRS 161.790(8), the teacher shall have the right to make an appeal to the Circuit Court having jurisdiction in the county where the school district is located in accordance with KRS Chapter 13B.
Pursuant to KRS 13B.140, all final orders such as the order of the education tribunal attached hereto, shall be subject to judicial review in the Circuit Court of venue if proceedings are instituted within thirty (30) days. Therefore, this matter is not completed and a final disposition until the appeal time has run and no appeal is filed.
Therefore, I am required to respond to your request that matters which you have requested are exempt from inspection at this time for one or more of the following reasons:
Therefore, other than the tribunal Findings of Fact, Conclusions of Law and Final Order, which we were advised by the Hon. Thomas J. Hellmann, Assistant Attorney General, who acted as hearing officer, became a matter of public record and permissible to be furnished to you immediately after the hearing April 30, 1998, the remainder of the information requested by you is still exempted from inspection and excluded from the application of KRS 61.870 to KRS 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction.
In his letter of appeal, Mr. Gold argues that the possibility that the teacher may appeal the decision of the administrative tribunal that upheld his suspension is irrelevant to his request and the agency's citation of five separate exceptions to disclosure under the Open Records Act, without an explanation as to which records were exempted by which of the cited exceptions, was insufficient to meet its burden of establishing that the requested records were exempt under the Act.
After receipt of the letter of appeal, we sent a "Notification to Agency
of Receipt of Open Records Appeal" to the School System and enclosed a copy of Mr. Gold's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Jury provided this office with a response to the issues raised in the appeal. In the response, Mr. Jury explained the background surrounding the records which Mr. Gold requested. He stated:
Information came to the Superintendent of Schools some time in November, 1997, that the teacher/ coach, Alex Shearer, had engaged in conduct unbecoming a teacher and immoral conduct with a teenage student by engaging in illicit sexual activity on two occasions, on school property and at his personal apartment. An extensive investigation was conducted by the superintendent, his administrative staff, and school board counsel with regard to the reported sexual activity with the teenage student. Also investigated were reports of his misconduct as a coach involving Kentucky High School Athletic Association Officials, and improper conduct with female students under his direction as players at athletic events.
Mr. Jury further explained that as the result of his investigations, the teacher/ coach received two suspensions. The first was a suspension for the remainder of the year as girls' softball coach. The second was a suspension from teaching duties for the remainder of the current school year. As the result of an appeal filed by the teacher/ coach, an Administrative Tribunal was convened by the Commissioner of Education to review the two separate suspensions. The appeal of the suspension as softball coach was voluntarily withdrawn by the teacher at the commencement of the Tribunal Hearing. The Tribunal affirmed the School System's decision to suspend and terminate the teacher's contract for the remainder of that school year.
In addition, Mr. Jury's response amplified the School System's original response by offering the following additional explanations for denying Mr. Gold access to the requested records:
The Superintendent and the Christian County Board of Education are further limited by the fact that there is no final action, as yet, in that pursuant to KRS 161.790(8) the teacher shall have the right to make an appeal to the circuit court in accordance with KRS 13B, and the time had not expired at the time of Mr. Gold's request, nor has it expired to date.
It is respectfully submitted that this matter involves privacy concerns with respect to the teacher/ coach, as Mr. Shearer requested, and was granted, a closed hearing. Thus, certain information contained in the investigation involves matters of a protected personal nature to Mr. Shearer, and public disclosure might well constitute an invasion of his personal privacy.
It is further submitted that information with regard to the teenage student who was the subject of teacher/ coach Shearer's conduct unbecoming a teacher and immoral conduct involved matters to which the student has a right to protect, and such disclosure would constitute invasion of her privacy.
Much of the information sought by Mr. Gold would involve preliminary drafts, notes, and correspondence with private individuals, which would be exempted from the Open Records Law by KRS 61.87[8](1)(i); and would, as well, include preliminary recommendations from staff assisting the Superintendent, which, in many instances were not adopted in the final action of the Superintendent and excluded under 61.87[8](1)(j).
The student who was the subject, or victim of the immoral character exhibited by the teacher/ coach or the conduct unbecoming, in violation of KRS 161.790, was under eighteen (18) years of age at the time, as well as all of the student witnesses who testified and/or questioned in the investigation and are protected under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C., Section 1232g, (the Buckley Amendment), commonly referred to as FERPA.
Information sought by Mr. E. L. Gold further, in part, if not in whole, violates the Kentucky Family Educational Rights and Privacy Act. KRS 160.700 to 160.730, commonly known as KFERPA.
Many of the records sought by Mr. Gold, and to which the Superintendent has claimed exemption under KRS 61.878(1)(k) and (l), contain statements of students, parents, and staff, compiled in the investigation of Mr. Shearer. Disclosure of these matters would constitute an unwarranted invasion of the personal privacy of these people, the students under age 18, as well as parents and teachers who are involved. Release of these statements would prove embarrassing for the students, probably lead to childing by other students, and would likely impede the progress of investigating future allegations in similar matters.
It is emphasized that the female student with whom the teacher/ coach, Shearer, was involved, was a minor teenage student, and many of the witnesses who testified for both sides were female students likewise under the age of 18, whose identification must, or should be protected, and who have not, nor have their families waived their protected rights under FERPA and KFERPA.
At a minimum, it would be the final request of this agency, the Christian County Board of Education, that all names, addresses, or other identifying factors with respect to any and all parties, particularly those under the age of 18 at the time of the activities referred to, being subject to the protection of FERPA and KFERPA, be protected in any final action which may be taken herein.
The material sought by the Open Records request also includes several psychiatric evaluations, as well as a DDS report from the Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services, which is deemed a confidential report by the Department regarding suspected abuse/neglect/dependency or exploitation.
Under authority of KRS 61.880(2) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the agency's response, we requested from the School System additional information and copies of the records, which are the subject of this appeal.
We have examined in camera the records provided this office. As directed by KRS 61.880(2)(c), we cannot disclose the specific documents contained in the files. However, we can provide a general description of the records in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to those records. To summarize generally, the records in the Superintendent's investigative file, relative to the allegations against the teacher/ coach, fall within the following categories: depositions; apartment diagrams; initial questioning; anonymous student letter; telephone records; polygraph records; Cabinet of Human Resources Report; psychologists' reports; written statements from teachers, students, family; coaching complaints; suspension - softball coach; suspension - teaching contract; tribunal correspondence; and letters to Professional Standards Board.
In addition to the above, we have been advised by John Kirkham, Attorney for the Christian County Board of Education, that the time for the teacher/ coach Shearer to take an appeal from the Final Order of the Administrative Tribunal to the circuit court has expired and no appeal was filed.
We are asked to determine whether the responses of the Christian County School Systems were consistent with the Open Records Act. For the reasons which follow, we affirm, in part, the School System's denial of Mr. Gold's requests. However, we find that its responses were procedurally and substantively deficient insofar as they failed to comply with the procedural requirements of the Open Records Act. KRS 61.880(1) provides, in relevant part, that:
An 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.
In
Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely comply with the requirements of the Act - much less . . . amount [] to substantial compliance.
Id. at 858 (emphasis added).
Thus, a public agency has a burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document withheld. KRS 61.880(1).
Moreover, it has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154.
The School System, in its May 1, 1998 response, stated that the requested records were exempt "for one or more of the following reasons" and then merely cited and quoted the statutory language of the exceptions relied upon, without an explanation as to how the cited exception applied to a particular record withheld.
Thus, the May 1, 1998 response was procedurally and substantively deficient in that it failed to briefly explain how the cited exceptions applied to specific documents requested but which were withheld from inspection.
In the School System's supplemental response to the letter of appeal, it explained how much of the information sought were preliminary drafts, notes, and correspondence with private individuals and preliminary recommendations from staff assisting the Superintendent, which, in many instances, were not adopted by the Superintendent, and were exempt under KRS 61.878(1)(i) and (j). [The response incorrectly cited the statute numbers as KRS 61.875(i) and (j), but the language quoted clearly indicates these were the exceptions relied upon.]
The School System also cited: KRS 61.878(1)(a), explaining that certain information contained in the investigation could or would constitute an unwarranted invasion of personal privacy of the teacher/ coach, the student victim, other students, parents, and teachers; cited KRS 61.878(1)(k) and (l) explaining that release of information relating to the victim and other students, under the age of eighteen, was protected by the Family Educational Rights and Privacy Act (20 U.S.C., Section 1232g) and the Kentucky Family Educational Rights and Privacy Act (KRS 160.700 - 160.730); stated that material sought included several psychiatric examinations and a Department of Social Service report regarding suspected abuse/neglect/dependency or exploitation, which was deemed a confidential report by the Department.
This response was also procedurally and substantively deficient by failing to comply with the requirements of KRS 61.880(1), KRS 61.880(2)(c) and KRS 61.882. Although the supplemental response cited statutory exceptions and explained that some of the requested records fell within some of the exceptions, it did not provide "particular and detailed information" in response to Mr. Gold's request. In 97-ORD-41, we observed:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), . . . we believe that the Board is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, . . . and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable.
For example, the School System might have characterized one or more of the records withheld as "written statements from students" and deny access on the basis of KRS 61.878(1)(k) and (l) and the Family Educational Rights and Privacy Act (20 U.S.C., Section 1232g) and the Kentucky Family Educational Rights and Privacy Act (KRS 160.700 - 160.730), respectively, and explain that these federal and state statutes preclude the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent.
The procedural and substantive deficiency in the supplemental response was the failure to dovetail the cited exception with the particular records being withheld.
Moreover, the responses failed to cite, in some instances, the particular state or federal statute, in tandem with KRS 61.878(1)(k) or (l), that prohibited disclosure of a requested record. For example, the responses failed to identify the statute which makes a Department of Social Services report a confidential record.
Turning to the other substantive issues of the appeal, we conclude that the School System properly withheld those records in its investigative file, pursuant to KRS 61.878(1)(i) and (j), which were not incorporated into or made a part of the Superintendent's final report.
KRS 61.878(1)(i) and (j) authorize the 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.
This office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1) (i) and (j). In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
Normally, the complaint that led to or spawned the investigation and the report setting forth the final agency action taken relative to the investigation are records subject to public inspection. However, in the instant case, there was no actual document constituting a written complaint. From documents provided this office, it appears that the Superintendent was informed of the incidents of the teacher/ coach orally and this precipitated the investigation. Obviously, an agency cannot provide a record which does not exist.
Our in camera review of the School Systems records, which are the subject matter of this appeal, indicate that the following groups of documents: depositions; apartment diagrams; initial questioning; anonymous student letter; telephone records; polygraph records; Cabinet of Human Resources Report; psychologists' reports; written statements from teachers, students, and family are all preliminary records which were part of the Superintendent's investigation and were neither made part of nor incorporated into the final agency action.
Accordingly, we conclude these records were properly withheld as exempt under KRS 61.878(1)(i) and (j). Because these exceptions authorize the withholding of these documents, we need not decide whether they are also exempt under other cited exceptions. Many of the records also fell within other cited exceptions which authorize nondisclosure. However, as noted above, the agency's failure to dovetail the cited exceptions in relation to particular records being withheld constituted a procedural and substantive violation of the Open Records Act.
However, we conclude the agency improperly withheld the notification of "Suspension Of Softball Coach Contract Of Robert Shearer" from the Superintendent, dated February 13, 1998; the letter from the Superintendent, dated April 8, 1998, notifying Mr. Shearer of the suspension of his limited teaching contract and the basis for that suspension; the letter, from the Superintendent, dated April 8, 1998, notifying of the nonrenewal as a certified employee in the Christian County School System; the Limited Contract of Employment of Mr. Shearer, as these are records reflect agency final action.
Mr. Gold requested copies of all complaints filed against Alex Shearer. The school system's file also contained complaints filed against him for his conduct as basketball coach. Although no action was apparently taken on these complaints, this office has recognized that complaints against public officers and employees are not exempt from inspection after final action is taken, or the decision is made to take no action. See, e.g., 94-ORD-27. As we noted at page 5 of 94-ORD-27:
The fact that [the agency] concluded that there was no basis for action against the [agency employee] has no bearing on whether the . . . complaint must be released. It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct.
Accordingly, the coaching complaints should be made available for Mr. Gold's inspection.
As noted above, the time for the teacher/ coach Shearer to take an appeal from the Final Order of the Administrative Tribunal to the circuit court has expired with no appeal taken to circuit court, thereby making the agency action against him final. Thus, we need not address the issue of whether the matter has been completed and final disposition imposed.
Records relating to the Tribunal proceedings, which include correspondence from Mr. Shearer's attorney to the Superintendent, legal pleadings, and the Hearing Officer's Findings of Fact, Conclusions of Law, and Final Order, are also in the agency's files. Since no exception was cited by the agency to authorize withholding these records, they should be made available for Mr. Gold's inspection.
Likewise, Mr. Gold requested copies of all correspondence by or between the school system and the Professional Standards Board of the Department of Education concerning the complaints and the tribunal hearing. As above, since no basis for withholdings these records was cited, they should also be made available for inspection.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.