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 Bullitt County Public Schools violated the Open Records Act in partially denying Dennis Franklin Janes's February 20, 2003, request for:
[c]omplete and legible copies of all documents exchanged between Jeremy Belcher and the administration of North Bullitt High School pertaining to Teresa Hensley . . . [and] complete and legible copies of all correspondence and memoranda exchanged between Jeremy Belcher and the administration of the Bullitt County Public Schools pertaining to Teresa Hensley.
For the reasons that follow, we find that the Board's reliance on KRS 61.878(1)(i) and (j) as the basis for partially denying Mr. Janes's request was misplaced.
Mr. Janes is defending Bullitt County teacher Teresa Hensley in a disciplinary action, and he has submitted this open records request on Ms. Hensley's behalf. Mr. Janes' request refers to Mr. Belcher. Mr. Belcher served as a collaborating teacher in Ms. Hensley's classroom, and he testified at Ms. Hensley's disciplinary appeal hearing. Mr. Belcher testified that he had complained about Ms. Hensley in a written communication that he provided to North Bullitt High School Principal Greg Schultz.
By letter dated February 26, 2003, Bullitt County Board of Education attorney Eric G. Farris notified Mr. Janes that he had "reviewed the document Mr. Belcher described in his testimony" and "provid[ed] a redacted copy of the three page document with only that portion which related to the final action against Ms. Hensley remaining legible. " Relying on KRS 61.878(1)(i) and (j), Mr. Farris asserted that the "remainder of that document . . . consists of preliminary notes with private individuals other than that which was intended to give notice of final action and also consists of preliminary memoranda in which opinions are expressed." Acknowledging that KRS 61.878(3) "allows employees access to preliminary records relating to them," he nevertheless maintained that the provision does not "appl[y] to this type of memorandum or note prepared by a co-worker. " In support, Mr. Farris cited 95-ORD-109 and 99-ORD-105. 1 Shortly after he received the Board's response to his request, Mr. Janes initiated this appeal, invoking KRS 61.878(3) and emphasizing that "[t]he Bullitt County Public Schools do not contend that Mr. Belcher's complaints about Ms. Hensley are the subject of any ongoing criminal or administrative investigations." In addition, Mr. Janes emphasized, "[t]he school system does not claim that disclosure of its correspondence with Mr. Belcher is prohibited by any state or federal law other than KRS 61.878(1)."
In supplemental correspondence directed to this office following commencement of Mr. Janes's appeal, Mr. Farris elaborated on the school system's position. He explained:
The Bullitt County Board of Education realizes that KRS 61.878(3), and supporting Attorney General opinions, allow disclosure of documents to public agency employees if the documents relate to that person. However, the Board strongly feels that allowing disclosure of collateral witness information, having no bearing on the final disciplinary outcome of a matter, would hinder the purpose of the Open Records Act and have a chilling effect upon the incentive for co-workers and other witnesses to come forward. Such a policy concern is especially important when involving Kentucky's public schools.
Noting that the disputed document is not available to the public, is not a part of Ms. Hensley's personnel file, and has not been disseminated, Mr. Farris expressed the view that disclosure of the document to Ms. Hensley would serve no purpose other than to promote dissension between co-workers and discourage teachers from "stand[ing] up to their peers . . . ." At a minimum, he argued, the Bullitt County Public Schools should be permitted to redact students' and parents' names based on the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its state counterpart, KRS 160.700, as interpreted in 98-ORD-180. 2 Although the Bullitt County Public Schools' policy arguments are compelling, the Attorney General cannot ignore Ms. Hensley's statutorily mandated right "to inspect and to copy any record including preliminary and other supporting documentation that relates to [her]," KRS 61.878(3), or resolve this dispute in a manner that fails to implement the clearly expressed object and intent of the legislature. Accordingly, we find that the school system erred in redacting all but five lines from the three-page document that related to Ms. Hensley on the basis of KRS 61.878(1)(i) and (j).
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 a decision directed to the Bullitt County Public Schools in 1996, the Attorney General observed:
The provision extends, by its express terms, to all "public agency employee[s]," and overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (j), 3 with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee or on his behalf. The final sentence authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Although as a rule of general application KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee, where the employee is under investigation, and the documents relate to that investigation, the request can properly be denied.
96-ORD-27, p. 3. In 96-ORD-27, the appellant, an attorney representing a teacher who had been disciplined by the Bullitt County Public Schools, requested copies of all records maintained by the school system "regarding allegations of misconduct made against [his client] . . . [including] all notes and reports compiled by school district employees and attorneys in the course of investigating these allegations of misconduct. " The school system resisted disclosure, KRS 61.878(3) notwithstanding, noting that although the teacher had been suspended without pay:
[s]uspension without pay is not the most severe personnel action that can be taken under KRS 161.790 - termination is also possible. Other administrative personnel are still investigating . . . to determine whether further action is warranted.
Because the investigation into the teacher's alleged misconduct was pending, this office affirmed the school system's denial of his attorney's request for records relating to the teacher based on the concluding sentence of KRS 61.878(3) and the assertion that those records "relate to an ongoing administrative investigation conducted by the Bullitt County Public Schools and are part and parcel of that investigation and prospective action."
In the appeal before us, the Bullitt County Public Schools do not assert that the investigation into Ms. Hensley's conduct is ongoing. Accordingly, the concluding sentence of KRS 61.878(3) does not impede Ms. Hensley's inspection of "any record including preliminary and other supporting documentation that relates to [her]." Because she is a public agency employee within the meaning of KRS 61.878(3), and because the disputed record, in its entirety, relates to her, she is entitled to inspect and copy that record in its entirety. As noted, in the presence of an unambiguous statutory mandate, we are not at liberty to resolve this appeal based on policy considerations. "If changes in the law are to be made," the Attorney General has often observed, "they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court." OAG 80-54, p. 3.
However, the Bullitt County Public Schools properly assert the right to redact student and parent names from the disputed document on the basis of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its state counterpart, KRS 160.700, et seq., which restrict access to student education records absent parental consent. 4 School districts which fail to observe these restrictions risk termination of federal funding. We believe that these federal and state restrictions on access, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), authorize redaction of student and parent names appearing in the document prepared by Mr. Belcher, and find no error in the Bullitt County Public School's decision to redact this information. On this issue, we agree that 98-ORD-180 (attached) is controlling.
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.
Dennis Franklin JanesSegal Stewart Cutler Lindsay Janes & Berry, PLLC1400-B Waterfront Plaza325 West Main StreetLouisville, KY 40202-4251
Eric G. FarrisBuckman Farris & Rakes, PSC193 S. Buckman StreetShepherdsville, KY 40165
Michael Eberbaugh, SuperintendentBullitt County Public Schools1040 Hwy 44EShepherdsville, KY 40165-6122
Footnotes
Footnotes
1 These decisions are inapposite. In 95-ORD-109, this office held that the Human Rights Commission properly withheld, inter alia, witness statements compiled by a Commission employee in an investigation of a private employer that was precipitated by a private employee's complaint. In 99-ORD-105, this office held that the Department of Corrections properly denied a newspaper reporter's request for witness statements compiled in an investigation of a DOC employee. Neither of these appeals involved a public agency employee's request for a record relating to her.
2 In 98-ORD-180, this office affirmed the Pulaski County Public Schools' redaction of student and parent names from an investigative report, including witness statements, released to the employee who was the subject of the closed investigation on the basis of FERPA and KFERPA.
3 KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
4 Education record is defined at 20 U.S.C.A. § 1232g(4)(A) as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution." The corresponding provision in Kentucky's act defines the term "education record" as "data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution[.]"