Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of Education Accountability properly relied on KRS 61.878(1)(l) and KRS 7.410(3) in denying Donna Taylor access to records which it maintains, and which relate to her. For the reasons that follow, we find tht OEA properly denied her request.
On July 22, 1998, Ms. Taylor, a teacher in the Pulaski County School District, submitted a written request to OEA for records relating to a complaint filed against her. In a response dated July 27, 1998, OEA counsel Ava Crow partially denied her request. Although Ms. Crow furnished Ms. Taylor with a copy of its letter to the local district dated July 8, 1998, reflecting the final action taken by the agency, she indicated that she was withholding "documents reflecting communications with the complainant who reported the allegations[,] . . . notes reflecting other communications with that complainant[,] . . . [and] a copy of the report issued by the Department for Social Services." In support of OEA's partial denial of Ms. Taylor's request, Ms. Crow cited KRS 61.878(1)(l) and KRS 7.410(3).
On behalf of his client, Ms. Taylor, John Frith Stewart initiated this appeal on August 12, 1998. It was his position that, since the investigation had been concluded, Ms. Taylor is entitled to inspect and copy "all records contained in the files pertaining to her and this incident from the Office of Education Accountability." Mr. Stewart explained:
A decision was made by the Kentucky Education Professional Standards Board on June 24, 1998, to dismiss without prejudice the allegations against Donna Taylor. Even the Office of Education Accountability's own correspondence states, "enclosed is a copy of a letter form this office to the local district dated July 8, 1998, reflecting the final action taken by this agency." (Emphasis added.) Thus, based on KRS 620.050(4)(a), Donna Taylor as the "person suspected" is entitled to a copy of a [sic] these records. . . . Even KRS 7.410(3) upon which the Office of Education Accountability relies states that the information ". . . shall be privileged and confidential during he [sic] course of an ongoing investigation . . ." (Emphasis added.)
In a letter to this office dated September 3, 1998, Ms. Crow responded to Mr. Stewart's argument. She described the legislative intent underlying KRS 7.410(3) as it relates to records compiled by the Office of Education Accountability:
This office was created with passage of the Education Reform Act in 1990, and our responsibilities are set forth in KRS 7.410(2). KRS 7.410(3) was added in 1992 after an issue arose about whether our staff was required to release information about the status of an investigation. The bill adding subsection (3) to KRS 7.410 made the language of the subsection retroactive and further had an emergency clause, making the bill effective immediately upon passage. Kentucky Acts , Chapter 270. . . . The emergency clause notes that "unimpeded operations of the Office of Education Accountability are critical to the successful implementation of the Kentucky Education Reform Act and the General Assembly's duty to provide for efficient common schools." As a part of the reform effort, we investigate allegations of wrongdoing, including "waste, duplication, mismanagement, political influence, and illegal activity." KRS 7.410(2)(c)(4). We receive in excess of 300 complaints yearly. Some matters are referred to the district to review and report to us; others are personally investigated by our staff. In the event the local district reviews a matter, we have the right to re-investigate the situation if we are not satisfied with the results of the local review. As a result of these duties, our files contain documents related to schools' financial status, allegations and evidence of theft on the part of school officials, student records, complaints which are not ultimately proven and which appear defamatory on their face, evidence of school staff having inappropriate relationships with their students, etc.
. . .
As noted in the emergency clause language of Subsection (3) of KRS 7.410, this office's need for confidentiality of information is critical to the functioning of the OEA, and that is the basis for the very broad statutory provision. For example, many complainants and informants refuse to provide information unless we can guarantee that we will keep their identity confidential. We recognize that fear of retaliation is a legitimate concern in some cases, and we therefore have a policy of refusing to provide information that might identify complainants or informants. When we inform districts of complaints, we paraphrase the complaint rather than sending the original letter, unless we have received permission from the complainant. Our concern is that something in the complaint letter will identify the complainant to the district, even if we redact the name. Also, in an effort to facilitate full and complete disclosure by school districts, we generally refuse to release information they provide us. Our concern is that the information might subsequently be used against a school district which has attempted to fully inform us of particular facts in the possession of the district.
Ms. Crow emphasized that the purpose of KRS 7.410(3) is "to facilitate complete and accurate information from complainants, informants and school districts," and that, "absent exigent circumstances," OEA does not release records compiled in the course of it investigation.
In the case of Mr. Stewart's client, OEA received a complaint about Ms. Taylor. OEA's file contains a written complaint, staff notes reflecting telephone conversations with the informant, correspondence with DSS and DSS's reports, correspondence with the school district concerning the complaint, including the superintendent's "Summary of Action" with attachments, correspondence to the superintendent reflecting OEA's final action in the matter, open records requests from the local newspaper and Ms. Taylor, and OEA's responses to each. It is our opinion that OEA properly withheld these records on the basis of KRS 61.878(1)(l) and KRS 7.410(3).
Although the Attorney General has never reviewed OEA's denial of a teacher's request for records relating to her on the basis of KRS 7.410(3), in 98-ORD-124 we were confronted with a similar appeal involving an agency's denial of a public employee's request for records relating to the employee on the basis of KRS 422A.0503. At pages 4 and 5 of that decision, we observed:
KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In construing KRS 61.878(3), the Attorney General has observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4. [A] public agency employee . . . is endowed with a broader right of access to records relating to her than the public's general right of access to those records. Records which would otherwise be shielded from disclosure as an unwarranted invasion of personal privacy (KRS 61.878(1)(a)), or as preliminary drafts or notes (KRS 61.878(1) (i)), or preliminary recommendations or memoranda in which opinions are expressed (KRS 61.878(1)(j)), as to third persons, must be made available to [the employee] if they relate to her.
As noted above, the "exception to the exceptions" admits of four exceptions. A public agency employee is not entitled to inspect any examination or any documents relating to ongoing criminal or administrative investigations by an agency. [Footnote omitted.] Nor is the employee entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)) or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)).
Just as in 98-ORD-124, KRS 422A.0503 barred a public employee's access to records relating to her, so, in the appeal before us, KRS 7.410(3) bars Ms. Taylor's access to records relating to her.
KRS 7.410(3) provides:
The provisions of KRS 61.878 or any other statutes, including Acts of the 1992 Regular Session of the General Assembly to the contrary notwithstanding, the testimony of investigators, work products, and records of the Office of Education Accountability relating to duties and responsibilities under subsection (2) of this section shall be privileged and confidential during the course of an ongoing investigation or until authorized, released, or otherwise made public by the Office of Education Accountability and shall not be subject to discovery, disclosure, or production upon the order or subpoena of a court or other agency with subpoena power.
As Ms. Crow correctly notes, this provision vests virtually unfettered discretion in the Office of Education Accountability to withhold records relating to its duties and responsibilities while an investigation is pending and after it has been concluded . Compare KRS 61.878(1)(h) (authorizing nondisclosure of records of law enforcement agencies or agencies involved in administrative adjudications that were compiled in the process of investigating statutory or regulatory violations until "after enforcement action is completed or a decision is made to take no action"). The broad scope of the language found at KRS 7.410(3), as well as its importance and urgency, are underscored by the fact that the General Assembly elected to make the confidentiality provision retroactive to July 13, 1990, and to include an emergency clause making the provision effective upon passage and approval by the Governor. OEA's investigative records, including records which it obtains from the school district or other agencies, are thus absolutely shielded from public inspection and are not "subject to discovery, disclosure, or production upon the order or subpoena of a court or other agency with subpoena power. "
Where the legislature has so firmly and so unambiguously expressed its intention to maintain the confidentiality of an agency's records, our duty is clear. We must give effect to the legislature's intent by affirming the Office of Education Accountability's denial of Ms. Taylor's request. Whatever injustice she may feel this confidentiality provision works on her, we are not at liberty to question the legislature's intent or to substitute our judgment for theirs. We find no error in OEA's partial denial of Ms. Taylor's open records request.
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.