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 Fayette County Public Schools (FCPS) violated the Open Records Act in denying Timothy R. Burcham's November 27, 2002, open records request for a "copy of any and all records, correspondence, reports, memos, emails, faxes, or other form of written and electronic documentation and/or communication related in any way to my son, Tyler Burcham, for the period May 1, 2000 to November 26, 2002, between and among the following persons:" 1 For the reasons that follow, and based on the authorities cited, we find the FCPS's responses failed to set forth a sufficient basis to support a blanket withholding of access to the requested records. We therefore remand the appeal back to the public agency with directions that it issue a new response to Mr. Burcham's request within three business days after receipt of the remand.
By letter dated December 3, 2002, Virginia W. Gregg, General Counsel to the Board of Education of Fayette County, responded to Mr. Burcham's request, advising:
Pursuant to KRS 61.878(1)(a), any all documents relating to your son consist of information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy and are exempted from disclosure under the Open Records Act and have not been provided. Additionally, those documents are exempt from release under the Open Records Act pursuant to KRS 61.878(1)(j) in that they are preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Please be advised that a request for documents under the Open Records Act must be responded to in the exact same way regardless of who makes the request and regardless of why the request is made. In other words, your status as a parent does not allow the documents you would be entitled to review under the Open Records Act to be different than a third party making the same request, i.e., the Herald-Leader.
In his letter of appeal, Mr. Burcham stated that in preparation for a due process hearing to determine whether the FCPS had properly denied his disabled 16-year old son Tyler a Free Appropriate Public Education under the provisions of the Individuals with Disabilities Act, he had made a request for access to the same records at issue in the instant appeal in a pre-hearing conference on November 27, 2002. He indicated that the Hearing Officer had denied his request for access to these records on the basis that they did not appear to fall within the definition of "education records," as defined by FERPA. In his letter of appeal to this office, Mr. Burcham argues, in part:
It is my assertion that documents and communications between and among parties that directly related to Tyler and that are maintained by the Fayette County Public schools Tyler attended or the officials in the central offices of the Fayette County Public Schools, should be considered part of his education records and thus made available for my inspection and review in preparation for the Due Process Hearing . . . .
After receipt of Notification of the appeal and a copy of Mr. Burcham's letter of appeal, John C. Fogle, III, Chenoweth Law Office, on behalf of FCPS, provided this office with a response to the issues raised in the appeal. In his response, Mr. Fogle, in relevant part explained:
This letter is submitted on behalf of the public agency, Fayette County Public Schools ("FCPS"), in response to the Open Records Appeal of Timothy R. Burcham, dated December 23, 2002. As acknowledged in the body of Mr. Burcham's appeal letter, and reflected in the portion of "Prehearing Order # 5," attached thereto, the parties to the present Open Records Appeal are also parties to a special education due process hearing proceeding now pending as Kentucky Department of Education, Division of Exceptional Children Services, Agency Case No. 0203-03. This is a special education due process hearing proceeding governed by the Individuals with Disabilities Education Act (IDEA"), 20 U.S.C., § 1400 et seq. and corresponding state law and regulations. By statute, such administrative hearings "shall be conducted in accordance with KRS Chapter 13B." See KRS 157.224(6). The only exceptions to KRS Chapter 13B coverage are that a first level due process hearing officer is empowered to enter a final order and federal timelines apply to the rendition of a decision. Id.
While the Kentucky Civil Rules of procedure do not apply to KRS Chapter 13B administrative proceedings, KRS 13B.080(1) vests authority in an administrative hearing officer to generally regulate the course of proceedings and KRS 13B.080(3) provides that a hearing officer may issue discovery orders when requested by a party or on his own volition. See also KRS 13B.070 (authorizing issuance of orders on prehearing conferences).
As reflected in "Prehearing Order # 5," which is currently extant and binding on the parties, "the Petitioner [ i.e., the Open Records Appellant] made a request --- which shall be construed as a motion for discovery. Specifically, the Petitioner desires access to [the student's] complete educational file, plus all correspondence, including e-mails, memoranda, and other communications relating to the Petitioner." See attachment to 12/23/02 appeal letter. As reflected in the Hearing Officer's ruling, no issue is presented on the instant appeal regarding access to the cumulative and special education due process files of the student and access to these records has been provided. Drawing upon appropriate regulatory provisions of the IDEA, e.g., 34 CFR, Section 300.562(a), corresponding state regulations, e.g., 707 KAR 1:360, Section 1, as well as the Family Educational Rights and Privacy Act ("FERPA"), the Hearing Officer held that the student's cumulative file and special education due process file were clearly education records under FERPA and the IDEA and access to same should be provided. However, the Hearing Officer also held that "[m]emoranda, e-mails, and other communications . . . do not appear to fit the definition of education records," and accordingly denied the motion for discovery to the extent that it sought disclosure of e-mails, memoranda, and other communications.
(Footnote omitted.)
In addition to the above, Mr. Fogle elaborated on the FCPS's initial response denying Mr. Burcham's open records request, stating in part:
The December 3, 2002, letter denying disclosure specifically invoked KRS 61.878(1)(j) which exempts records which are preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. As has been noted, the Hearing Officer's order provides for disclosure of the student's cumulative file and special education due process file so that disclosure of such records is not at issue. Particularly as relates to the provision of special education programming, the due process folder consisting of notices, individual education programs, admission and release committee meetings, and related documents serves to memorialize final agency action with respect to the provision of special education services. On the other hand, the present November 27, 2002, request seeking the same materials which were dealt with in the prehearing conference of the same date consisting of records, correspondence, reports, memos, e-mails, faxes, or other form of written and electronic communication between and among some twenty-nine (29) individuals and/or entities, clearly seeks disclosure of the documents that are properly exempt under KRS 61.878(1)(j). The Attorney General has upheld the application of KRS 61.878(1)(j) to agency deliberative and preliminary processes noting that the exemption is intended to protect the integrity of such by encouraging the free exchange of opinions and recommendations. See, e.g., 93-ORD-25; OAG 88-85. As noted above, the requesting party's appeal simply does not take issue with the public agency's invocation of this exemption as it applies to intra-agency communications already subject to the Hearing Officer's ruling. For that reason alone, the relief requested in the present appeal should be denied.
Alternatively, pursuant to KRS 61.878(1)(l), disclosure of any communications by and between the Board's general counsel, Virginia Gregg, and the parties identified in the request should be exempted on grounds of attorney-client privilege or work product privilege.
We are asked to determine whether the FCPS's denial of Mr. Burcham's request violated the Open Records Act. We have reviewed the respective arguments of both parties and after due consideration, conclude the FCPS's responses failed to set forth a sufficient basis to support a blanket withholding of access to the requested records. Accordingly, we remand the appeal back to the public agency with directions that it issue a new response to Mr. Burcham's request within three business days after receipt of the remand.
In its response to the letter of appeal, FCPS argues that the open records request and subsequent appeal constitutes a collateral attack on the Hearing Officer's order which denied production of the very documents which are the subject of the instant appeal. The Attorney General has long recognized that a public agency is not relieved of its duties under the Open Records Act by virtue of pending litigation. In an early opinion, this office observed:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the record.
OAG 82-169, p. 2. Elaborating on this view in a subsequent decision, we stated:
Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3.
Just as the public agency is not relieved of its obligations under KRS 61.880(1) in the presence of litigation, so too the Attorney General is not relieved of his obligations under KRS 61.880(2) when there is litigation in the background. In OAG 80-278, we held that despite the fact that litigation was in progress and regular discovery procedures were therefore appropriate, "KRS 61.880(2) requires the Attorney General to give an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law." OAG 80-278, p. 3.
Thus, notwithstanding that the parties to this appeal are involved in an administrative proceeding, Mr. Burcham is entitled to exercise his right under the Open Records Act to request inspection of public records and assert his right to appeal the agency's response to the Attorney General, under KRS 61.880(2). Accordingly, we will address whether the FCPS's denial of Mr. Burcham's request constituted a violation of the Open Records Act.
In support of its denial of Mr. Burcham's request, the FCPS relied upon the exceptions to disclosure set forth in KRS 61.878(1)(a), (j), and (l). 2 We will address each seriatim.
The FCPS denied Mr. Burcham access to the requested records pursuant to KRS 61.878(1)(a), explaining that any documents relating to his son consisted of information of a personal nature where the disclosure thereof would constitute an unwarranted invasion of personal privacy.
In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky. 826 S.W.2d 324 (1992), the Kentucky Supreme Court enunciated a clear test for analyzing the propriety of an agency's invocation of this exception. There the court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Board of Examiners, supra at p. 327, 328. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra at 328. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records. Our decision in each case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation.
In this case, Mr. Burcham is requesting records relating to his son. The FCPS argue that his status as a parent does not allow him to be entitled to review the records review under the Open Records Act to be different than a third party making the request. We disagree. Under the circumstances of this particular case, we find that the agency improperly relied on KRS 61.878(1)(a), in denying Mr. Burcham's request to inspect records relating to his son. It goes without saying that the privacy interests implicated by a request for information relating to a citizen by the Herald-Leader or a disinterested third party is substantially greater than a request for that same information by the parent of the student. Where the requester is a student's parent and the records requested relate to that student, generally no privacy interests can reasonably be asserted. Of course, where there is a court order or other legal directive barring a parent access to his child's education or school records, the result would be different. See, 01-ORD-178.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)] protect preliminary documents from public disclosure if they are not adopted as the basis of final agency action. This is the seminal decision on the preliminary documents exceptions.
In addition, 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). 98-ORD-27. 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.
In discussing KRS 61.878(1)(j) , in particular, this office has observed that:
. . . KRS 61.878(1)(j) is "intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussion of matters of concern to the agency." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125; see also 99-ORD-206 (affirming denial of email communications in which opinions were expressed, but which were not adopted into final agency action, on the basis of KRS 61.878(1)(j)). To the extent that the Department's file consists, in part, of written and email communications, and attachments thereto, in which opinions are expressed and policies formulated concerning the ongoing inquiry, we find that these records were properly withheld.
02-ORD-224, p. 7.
The FCPS, in its responses, invoked KRS 61.878(1)(j), by citing the exception and its language, but failed to provide an adequate explanation of how the exception applies to the particular records withheld. In its response to the letter of appeal, the agency described the withheld documents as "records, correspondence, reports, memos, e-mails, faxes, or other form of written and electronic communication between and among some twenty-nine (29) individuals and/or entities."
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 compl[y] 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(s) 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 particular 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; 93-ORD-67.
The FCPS, in its responses, described the types and classes of records withheld and then stated the described records were exempt from public disclosure under KRS 61.878(1)(j) without an explanation as to how the cited exceptions applied to particular records or class of records withheld. A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirement of the Act. 97-ORD-41. We conclude the agency's denial was procedurally and substantively deficient in that its denial failed to identify which cited exceptions applied to which documents or class of documents requested and to briefly explain how a cited exception applied to a particular record(s).
For the same reason, we find that the FCPS's reliance upon KRS 61.878(1)(l) and the attorney-client privilege and work product doctrine also to be procedurally and substantively deficient. In 03-ORD-042, we discussed the application of these privileges and the Open Records Act, stating at p. 9:
. . . Both the courts and this office have recognized these privileges in the context of an open records dispute where all of the elements of the privileges are present. See Hahn v. University of Louisville, Ky.App., 80 S.W.3d 771 (2001); 01-ORD-246. Nevertheless, at pages fourteen through eighteen of the latter decision, a copy of which is attached and its reasoning incorporated by reference, the Attorney General recognized that a public agency "cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(1)] and the attorney-client/ work-product doctrine simply because it is represented by an attorney in the matter." 01-ORD-246, p. 17, citing OAG 91-109 and OAG 88-25. Similarly, in 03-ORD-015, referenced above, we reminded the Justice Cabinet that there is no "litigation" or "residual" exception that can be invoked by an agency solely because it is engaged in litigation, or in this case, threatened litigation. There, we emphasized that the attorney-client privilege and work product doctrine could not "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 are present," and noted that the Cabinet had made "no such showing relative to the disputed [GOT] report." Id. at 6.
We do not suggest that the FCPS's reliance on KRS 61.878(1)(j) and (l) of the Act was completely misplaced, only that it failed to provide sufficiently particular and detailed information in its denial of Mr. Burcham's request. 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 FCPS is obligated to provide particularized justification for the withholding of documents, or groups of documents, that are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable.
We therefore find that although the FCPS may withhold those records which qualify for exclusion under the cited exemptions, it is obligated to disclose any nonexempt records and to identify in general terms, as suggested above, the records withheld and articulate the reasons for withholding those remaining responsive records in terms of the requirements of the exemptions. Accordingly, consistent with the principles articulated above, the instant appeal is remanded back to the public agency with directions that it issue a new response to Mr. Burcham's request within three business days after receipt of the remand.
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.
Timothy R. Burcham1105 Zoeller CourtLexington, KY 40511
Virginia GreggOffice of General CounselFayette County Public Schools701 East Main StreetLexington, KY 40502-1699
L. Duane TennantInterim Superintendent or Records CustodianFayette County Public Schools701 East Main StreetLexington, KY 40502
John C. Fogle, IIIChenoweth Law Office121 Bridge StreetFrankfort, KY 40601
Footnotes
Footnotes
1 Mr. Burcham's request listed 28 individuals, plus the Fayette County Board of Education members.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 Because FCPS did not deny access to the requested records under KRS 61.878(1)(k), which authorizes the nondisclosure of"[a]ll public records or information the disclosure of which is prohibited by federal law or regulation, " we do not address whether the records at issue could properly be withheld under authority of FERPA or the IDEA.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -