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 Franklin County School System's denial of the open records request of Susan Allen, a reporter with The State Journal for "copies of termination letters and all documents related to disciplinary action on charges filed by Franklin County Schools Superintendent Joe McCorkle against teachers Alan Spad and Bryan Edwards."
Responding on behalf of the school system, John C. Fogle, III, Chenoweth Law Office, denied Ms. Allen's request, stating, in part:
. . . The bases for such denial is that under the circumstances at hand, the documents requested fall under the exemptions set forth at KRS 61.878(1)(i) [and] (j) which apply to preliminary correspondence . . . other than correspondence which is intended to give notice of final action of a public agency and "preliminary recommendations. "
A Superintendent is authorized to take disciplinary action under KRS 161.790 and such becomes final unless an affected teacher furnishes notice of intent to answer disciplinary charges. See KRS 161.790(3). With respect to the charging documentation you request, the affected individuals have exercised the right of appeal described under KRS 161.790(9). Accordingly, while the administrative matter is pending before the tribunal called for under KRS 161.790, the action of the Superintendent is non-final and is subject to review through the tribunal process. See OAG 91-198. While it is true this Opinion dealt with the situation in which charging documents were subject to disclosure, the affected employee had resigned from his certified position with the School District, by definition making the charges final.
We are asked to determine whether the Franklin County School System violated the Open Records Act in denying Ms. Allen's request. For the reasons that follow, we conclude that the agency's denial, under authority of KRS 61.878(1)(i) and (j), was proper and consistent with the Act.
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.
In 95-ORD-47, we held that a school board was required to provide the requester with copies of the written list of charges and documents reflecting final disposition of teacher tribunal hearings relative to a contract termination, where the tribunal's decision was final. In that decision, the affected teacher had not challenged the tribunal's decision by filing an appeal to circuit court, as authorized by KRS 161.790(8). Addressing the application of KRS 61.878(1)(i) and (j) to matters of public employee discipline, this office observed:
In analyzing the propriety of release of records relating to public employee discipline under KRS 61.878(1)(i) and (j), the preliminary documents exceptions, the courts and this office have consistently recognized that "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. " OAG 88-25, p. 3; see also, City of Louisville v Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983);Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983);Kentucky Board of Examiners of Psychologists v Courier-Journal Ky., 826 S.W.2d 324 (1992); OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG 89-74; OAG 91-33; OAG 91-45; OAG 91-62; OAG 91-81; OAG 91-90; OAG 92-34; 94-ORD-27. In a seminal opinion addressing the applicability of these exceptions to such records, the Kentucky Court of Appeals observed, "The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon." City of Louisville, supra at 660. Unless some other exception to public inspection applies, public agencies are obligated to disclose records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action.
Likewise, as argued by Mr. Fogle in his response, in 91-ORD-198, we held that charging documents were subject to disclosure, where the affected employee had resigned from his certified position with the school district, thus, making the charges final. In 95-ORD-47 and 91-ORD-198, we held that once final action had been taken on the disciplinary proceeding, the school board was required to disclose the record of the final agency action, the charges or complaint that initiated the action, and any other records which were incorporated into or made a part of the final action. The holdings in these decisions are applicable to the instant appeal.
In his letter of denial, Mr. Fogle indicated that the affected teachers had exercised their righ of appeal as authorized under KRS 161.790(9), which provides:
As an alternative to termination of a teacher's contract, the superintendent upon notifying the board and providing written notification to the teacher of the charge may impose other sanctions, including, suspension without pay, public reprimand, or private reprimand. The procedures set out in subsection (3) of this section shall apply, except to a private reprimand. The teacher may appeal the action of the superintendent, except a private reprimand, in the same manner as established by (4) and (8) of this section. Upon completion of a suspension period, the teacher may be reinstated.
KRS 161.790(3) sets forth the procedure a teacher must follow if he or she intends to answer the charge. That statute provides:
No contract shall be terminated except upon notification of the board by the superintendent. Prior to notification of the board, the superintendent shall furnish the teacher with a written statement specifying in detail the charge against the teacher. The teacher may within ten (10) days after receiving the charge notify the chief state school officer and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days the dismissal shall be final.
In his response, Mr. Fogle further advised Ms. Allen that "the administrative matter is currently pending before the tribunal called for under KRS 161.790, the action of the Superintendent is non-final and is subject to review through the tribunal process."
Thus, at the present stage of the disciplinary proceedings, there has been no final agency action. Until final action has been taken on the charges, the termination letters and all documents related to disciplinary action maintain their preliminary status, and may be properly withheld from disclosure under KRS 61.878(1)(i) and (j). Once final action has bee taken in the disciplinary matters, unless some other exception to public inspection applies, the school system is obligated to disclose to Ms. Allen records reflecting final agency action the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action. 95-ORD-47; OAG 91-198.
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.