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 is before the Attorney General on appeal from the Pulaski County Schools' partial denial of the open records request of R. Michael Johnson, Editor, Commonwealth Journal, to inspect records from the personnel file of Carol Knupp, a former principal at a Pulaski County elementary school.
On April 19, 1999, Mr. Johnson requested to inspect the complete personnel file of Ms. Knupp. By letter dated April 21, 1999, Bert Minton, Superintendent of the Pulaski County Schools, provided certain documents from the file without redaction, certain other documents in a redacted form under authority of KRS 61.878(1)(a) and 20 U.S.C. § 1232g, and denied access to remaining records on the basis of KRS 61.878(1)(a),(i), and (j).
Mr. Johnson appeals the denial of access to inspect a copy of the letter of suspension of Carol Knupp, a former principal at a Pulaski County elementary school, issued by Bert Minton, Superintendent of Pulaski County Schools.
After receipt of Mr. Johnson's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Larry G. Bryson, Board Attorney for the Pulaski County Schools, provided this office with a response to the issues raised in the appeal. Addressing the requested letter of suspension, Mr. Bryson states, in part:
This letter of suspension was not released pursuant to the records request because the letter of suspension made no determination, at the time it was written, as to whether the suspension was with or without pay, or whether the matters under investigation had any merit. Pursuant to KRS 161.790, and other applicable law, the Superintendent is entitled to take this action. The letter of suspension notified Ms. Knupp of the allegation(s) that had been made, but no investigation had occurred at that time, therefore, no determination was made at that time as to whether the suspension was with or without pay, or whether the allegations had any merit. This letter was clearly a preliminary document , and was obviously not intended, by its plain language, to be notice of final action by the Superintendent. As a part of the subsequent investigation, a committee interviewed several persons, including staff members and students; the committee would probably have spoken with Ms. Knupp, but her attorney wrote Superintendent Minton that no one should attempt to discuss these matters with Ms. Knupp without the attorney being present. After the committee finished its interviews, Superintendent Minton notified Ms. Knupp that he wanted to discuss these matters with her, and an interview was scheduled, but before the interview occurred, Ms. Knupp resigned. The investigation was, therefore, never completed.
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 a copy of the letter of suspension, which is the subject of this appeal, from the Pulaski County Schools.
We have examined in camera the letter of suspension provided this office. As directed by KRS 61.880(2)(c), we cannot disclose the contents of this document. However, we can provide a general description of the record in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record.
To summarize generally, the letter of suspension is a document which sets forth the nature of the incident or allegations involving the principal which had been reported to the Superintendent; it notifies the principal that she is suspended without pay pending an investigation of the incident; that if the allegations are without merit, she will be restored to her position and will be paid for the time of suspension; that if the allegations have merit, the Superintendent would take appropriate disciplinary action; and that during the investigation, the principal would be given the opportunity to explain her side, and could do so with the advice of counsel, at her own expense.
At issue in this appeal is whether the Pulaski County Schools properly withheld disclosure of this letter of suspension. For the reasons that follow, we conclude that the agency improperly denied access to this record.
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. 98-ORD-117. In the instant case, there apparently was no actual document constituting a written complaint and no finished report of the investigation, as Ms. Knupp resigned before the investigation was completed.
However, the essence of the complaint or incident which precipitated the investigation is set forth in the letter of suspension, and takes on the character of the complaint which spawned the investigation.
The fact that the agency may have concluded that there is no need for further action on the incident due to Ms. Knupp's resignation has no bearing on whether the complaint or a record documenting the essence of the complaint must be released. In 99-ORD-39, p.7, we noted:
The fact that the [agency] may have ultimately concluded that there is no basis for action against an individual employee has no bearing on whether these records [complaints] 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. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] . . ., if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p.7.
Under the facts of this case, we conclude that the public would be entitled to inspect a copy of the letter of suspension which describes the complaint made against Ms. Knupp and a copy of her letter of resignation. Otherwise, there would be no way for the public to evaluate a complaint made against a public employee in a matter related to her job performance and a matter about which the public has a right to know, and more importantly, no way for the public to effectively monitor public agency action, and insure that the agency is appropriately investigating and acting upon allegations of employee misconduct. 99-ORD-105; 97-ORD-121; 96-ORD-86.
The fact that the Pulaski County Schools decided to take no further action on the complaint or that its investigation was preempted by Ms. Knupp's resignation, in our view, indicates that the "final action" of the agency was to take "no action" on the complaint. 94-ORD-76. In order to evaluate whether the agency's actions regarding the complaint were appropriate, the public should be able to inspect the portion of the letter of suspension describing the complaint or incident, which initiated the agency's investigation, notwithstanding the fact there was no final report, as the matter was dropped due to Ms. Knupp's resignation. 99-ORD-105. Accordingly, we conclude the Pulaski County Schools improperly withheld disclosure of that portion of the letter of suspension which reveals the content of the complaint against Ms. Knupp.
Since there was no final report in which any part of the investigative files could be incorporated into and made a part of final agency action, and the agency did not utilize any part of the file to initiate a civil, criminal or personnel action against Ms. Knupp, the agency may properly deny access to portions of the document which reflect preliminary opinions or recommendations, pursuant to KRS 61.878(1)(i) and (j). Exempt portions of the document may be redacted under authority of KRS 61.878(4). The remainder of the letter of suspension which relates to and reveals the content of the complaint should 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.