Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Laurel County School District violated the Open Records Act in its response to the open records request made by Keith P. Morgan. For the reasons that follow, we conclude actions of the School District did not violate the Act.
By letter dated July 17, 2002, Mr. Morgan made the following request:
I request a copy of the following document [or documents containing the following information] be provided to me:
By letter dated July 19, 2002, Larry G. Bryson, Laurel County School Board Attorney, responded to Mr. Morgan's request, advising in relevant part:
As you know, you made a complaint to Superintendent Randall Baker regarding two other school employees. Your request, which is outlined verbatim herein below, is primarily a request for information concerning the investigation of those individuals, based upon your initial complaint.
I have reviewed the request that you made for this information and have reviewed the contents of a file made by former Superintendent Randall Baker and left in the superintendent's office relating to the matter. As you know, present Superintendent Walter T. Hulett's involvement in the investigation was limited.
In response to Mr. Morgan's numerical request number 1, Mr. Bryson advised:
We will not provide you with "any and all records pertaining to the investigation." We are not providing you with tape recordings made by this attorney during the course of this investigation. These are of the same nature as "notes" or "preliminary drafts" that were made during this investigation. The audio recordings that were made by me were made rather than handwritten notes that Superintendent Baker or I might have otherwise taken, because our notes are often not later legible or comprehensive and this is our method of keeping a more accurate record of the investigation. "Notes and preliminary drafts, correspondence with private individuals" are not subject to Public Records disclosure (KRS 61.878(1)(i).
In response to Mr. Morgan's numerical request number 2, Mr. Bryson advised:
The persons involved with the investigation were the undersigned Board Attorney Larry G. Bryson and Superintendent Randall Baker. At certain stages of the investigation, others minimally involved in the investigation were (then) Principal Greg Smith, Assistant Superintendent David Young and (then) Assistant Superintendent Walter T. Hulett.
In response to Mr. Morgan's numerical request number 3, Mr. Bryson advised:
The document that initiated this investigation was a letter from you to Superintendent Randall Baker. Superintendent Baker asked that you provide other information to him and you later provided some other information. These letters from you to Superintendent Baker are being returned to you, not as a "Public Record" but because of your request in (6). Superintendent Baker's letter to you is also enclosed.
There were audio recordings made of two interviews with you; these occurred on May 30, 2001 and June 14, 2001. These would be within the exception of KRS 61.878(1)(i) mentioned above, but KRS 61.878(3) states that preliminary documentation that relates to you is not exempted. For this reason, these recordings are being made available to you and are enclosed.
In response to Mr. Morgan's numerical request number 4, Mr. Bryson advised:
No transcripts have been made of any interviews. I do not know what you intend to mean by a transcript or note. If you are asking for copies of notes that were made during interviews or other notes that were made during the course of the investigation, these are exempted from public record requests by KRS 61.878(1)(i).
In response to Mr. Morgan's numerical request number 5, Mr. Bryson advised:
I do not know what you are meaning by "documents relating to the results of the investigation."
You made a complaint to the Education Professional Standards Board and at the request of Superintendent Baker, I made a written reply to their verbal inquiry; a copy of this is enclosed.
There is included in Superintendent Baker's file of this matter various Court documents; copies of all these are enclosed.
In response to Mr. Morgan's numerical request number 6, Mr. Bryson advised:
Your request of all information submitted to Superintendent Baker by you is being returned to you with this letter (this is all of the information that we could locate within the possession of the Laurel County Schools). We are returning this information to you, but not as a part of a request pursuant to KRS Chapter 61.
In his letter of appeal, Mr. Morgan stated he was appealing the refusal of Mr. Bryson to allow him to inspect all audio recordings of the investigation and the agency's refusal to give all the names of the people involved with the investigation.
After receipt of Notification of the appeal and a copy of Mr. Morgan's letter of appeal, Mr. Bryson provided this office with a response to the issues raised in the appeal. In reference to the denial of the audio tape recordings, Mr. Bryson explained:
What I have not provided to Morgan are copies of audio tape recordings that I made of my interviews with other witnesses, specifically those with Hays, Elmore, Woods, and Nunley. I stated in the response that I made to Morgan on behalf of the School District that
We will not provide you with "any and all records pertaining to the investigation." We are not providing you with tape recordings made by this attorney during the course of this investigation. These are of the same nature as "notes" or "preliminary drafts" that were made during this investigation. The audio recordings that were made by me were made rather than handwritten notes that Superintendent Baker or I might have otherwise taken, because our notes are often not later legible or comprehensive and this is our method of keeping a more accurate record of the investigation. "Notes and preliminary drafts, correspondence with private individuals" are not subject to Public Records disclosure (KRS 61.878(1)(i).
The medium utilized in making notes should not account in a difference in the application of this statute; that the notes are made with an audio recording rather than by use of a pen or pencil should make no difference. As technology develops, there may be other methods of taking notes.
If I can no longer be assured that audio recordings of interviews that I make as the School District's attorney are mine, for use as I would use yellow pads and other notes, I will refrain from making these recordings and return to yellow pads and note taking, but this would be at the risk of inaccuracies that can be avoided.
In his response, Mr. Bryson indicated that no disciplinary action was taken against the two teachers, in part because "the allegations made by Morgan that the alleged misconduct occurred either during school hours or on school property was not substantiated." In an August 13, 2001 letter to the Kentucky Education Professional Standards Board, Mr. Bryson, in response to a verbal inquiry from them, advised the Board as to the result of the School District's investigation of Mr. Morgan's complaint. In that letter, Mr. Bryson, in relevant part, explained:
We have related all of the above information to Mr. Morgan. He made a complaint to the Office of Education Accountability (OEA) and now to your office regarding this matter. I have personally explained to Mr. Morgan that under Kentucky law, the Superintendent does not have legal reasons to take disciplinary actions against Woods or Jessica, based on the facts that we have at this time. Although KRS 161.790(1)(d) states "immorality" and "conduct unbecoming a teacher" as grounds for disciplinary action by a superintendent, unless there is a "nexus" with the school, the case law is well established that no disciplinary action can be taken by the superintendent. Although Keith Morgan is of a different opinion and belief, we could find no facts substantiating his claim that improper conduct occurred between Jessica and Ken Woods at school. Keith Morgan claims to have discussed this with his divorce attorney who is of a different legal opinion.
We are asked to determine whether the denial of the requested audio tape recordings violated the Open Records Act. For the reasons that follow, we conclude that the denial did not violate the Act.
In support of its denial, the school system cited KRS 61.878(1)(i), which authorizes 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.
As we have observed, "not every paper in the office of a public agency is a public record subject to public inspection . . . . Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference." OAG 78-626, p.2. In a more recent decision, this office dissected the language of KRS 61.878(1)(i):
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . . ." [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. See, also, OAG 84-298, in which this office held tape recordings of employee interviews pertaining to an internal investigation of the Louisville Division of Fire were not open to public inspection as they constituted preliminary notes and preliminary memoranda containing opinions. Resolution of this issue turns on whether the records withheld qualify for exclusion as preliminary notes.
In his responses, Mr. Bryson explained the audio recordings of the witness interviews were made as a method of keeping a more accurate record of the investigation and represented an aid to the memories of both Mr. Bryson and the superintendent. Thus, we conclude that the tapes are in the nature of a tool used in hammering out official action rather than the official action itself. We therefore affirm the School District's denial of Mr. Morgan's request for the requested audio tape recordings, under authority of KRS 61.878(1)(i) .
Mr. Morgan raised an issue in his appeal that the School District had refused to give all the names of the people "involved with the investigation." In response to this request, Mr. Morgan was advised of all the people involved in conducting the investigation. Mr. Morgan, in his letter of appeal, stated that this was not what he was wanting. He wanted the names of "ALL" the witnesses. This appears to be more of a misunderstanding between the parties, rather than an attempt to subvert the intent of the Open Records Act. Mr. Bryson's response to the letter of appeal identified names of witnesses interviewed. Mr. Morgan was provided a copy of this response. Hopefully, if any question remains regarding records indicating the names of witnesses involved, it can be worked out through consultation and cooperation between the parties. In this regard, we find no violation of the Open Records Act.
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.