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 Monroe County Board of Education violated the Open Records Act in the denial of Regena Proffitt's request for a copy of the e-mail sent to George Wilson, Superintendent, Monroe County Board of Education, by Ms. Proffitt's supervisor, Lewis Carter. For the reasons that follow, we conclude that the agency improperly denied Ms. Proffitt's request
By letter to Superintendent Wilson, dated April 7, 2003, Ms. Proffitt requested a copy of the "[e]-mail sent to you from Mr. Lewis D. Carter, read to me from hard copy in your office Nov. 15, 2002."
By letter dated April 9, 2003, Superintendent Wilson denied the request for this document, advising, in part:
Your request for a copy of an e-mail sent to me from Lewis D. Carter is denied since this record is not subject to public disclosure pursuant to KRS 61.878(1)(i) and (j). Specifically, the document you have requested constitutes a preliminary draft or note; contains preliminary recommendations; and constitutes a preliminary memorandum in which opinions are expressed or policies formulated or recommended. As you will recall, I met with you on November 4, November 8, November 15, and December 10, 2002 regarding your concerns about your job assignment and working relationship with your supervisor, Mr. Carter. In considering your concerns, I met with Mr. Carter, and Mr. Carter documented his recollection of some of the events about which you had expressed concerns. Based on my investigation of the matter, I wrote you a letter dated December 20, 2002 in which I made a final determination that your job description does require you to work in the Title IV Safe Schools, Alternate Learning Center (ALC), and Student Assistance Programs. I also concluded that Mr. Carter is your immediate supervisor since he is the Safe Schools Director and the Alternative Learning Center Director. I further informed you that no other positions for which you were qualified were available. I did not adopt any portion of the document I received from Mr. Carter as a part of my letter to you. As a result, the only document to which you are entitled regarding this matter is my December 20, 2002 letter of which you already have a copy.
As a result of the denial, Ms. Proffitt, by letter dated April 17, 2003, initiated the instant appeal arguing that as an employee of the Monroe County Board of Education and because the record requested related to her, she was entitled to a copy of the record under authority of KRS 61.878(3).
After receipt of Notification of the appeal and a copy of the letter of appeal, Regina Jackson, counsel for the Monroe County Board of Education, provided this office with a response to the issues raised in the appeal. In her response, Ms. Jackson explained:
On November 15, 2002, Regena Proffitt, a classified employee of the Monroe County School District, advised the Monroe County School District Superintendent, George Wilson, that her supervisor, Lewis Carter, screamed at her and slammed down and threw a water bottle across the room during a meeting with her on November 11, 2002. As part of his investigation regarding Ms. Proffitt's allegations regarding Mr. Carter, Mr. Wilson asked Mr. Carter to document his recollection of his meeting with Ms. Proffitt on November 11, 2002. This document is the subject of the current appeal.
As Mr. Wilson advised Ms. Proffitt by letter dated April [9], 2003, the document that Ms. Proffitt has requested is not subject to public disclosure pursuant to KRS 61.878(1)(i) and (j) as it represents a preliminary draft or note; contains preliminary recommendations; and constitutes a preliminary memorandum in which opinions are expressed or policies formulated or recommended. Mr. Wilson did not adopt any portion of the document he received from Mr. Carter when he responded in writing to Ms. Proffitt regarding her allegations on December 20, 2002, a copy of which is attached.
While Ms. Proffitt contends that she is entitled to the document prepared by Mr. Carter at Mr. Wilson's request because the document relates to her, the document pertains to Mr. Wilson's investigation of Ms. Proffitt's allegations and not to any investigation of Ms. Proffitt. As a result, the documentation that Mr. Wilson gathered as part of his investigation of Mr. Carter's behavior should not be subject to public disclosure.
We are asked to determine whether the agency's denial violated the Open Records Act. For the reasons that follow, we conclude that the Monroe County School Board improperly denied Ms. Proffitt's request. As a public agency employee of the Monroe County Board of Education and because the record related to her, Ms. Proffitt was entitled to inspect and receive a copy of the document under authority of KRS 61.878(3). We find that the agency improperly relied on KRS 61.878(1)(i) and (j) in denying Ms. Proffitt access to the requested record, as those exemptions, in this appeal, are overridden by KRS 61.878(3). That statute 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 analyzing this provision, the Attorney General has recognized:
. . . KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), 1 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. The final sentence of the provision 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. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related.
95-ORD-97, p. 4.
The record before us reflects that Ms. Proffitt is an employee of the Monroe County Board of Education and that the document at issue relates to Ms. Proffitt's allegations made to the Superintendent about Mr. Carter's conduct toward her at a meeting on November 11, 2002 and reflects Mr. Carter's recollection of the meeting with Ms. Proffitt. Moreover, the record indicates that the Superintendent's investigation and final determination of the matter was concluded by his issuance of his letter of December 20, 2002 to Ms. Proffitt. Under these facts, we conclude that the record, although preliminary to and not adopted as part of the Superintendent's final determination, relates to Ms. Proffitt and the application of KRS 61.878(3). This mandatory stricture overrides any otherwise applicable exemption, including KRS 61.878(1)(i) and (j), with the exceptions noted above, to compel disclosure. Accordingly, consistent with the principles set forth in 95-ORD-97, the agency should therefore make immediate arrangements for Ms. Proffitt to review the requested record.
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.
Regena Proffitt305 James Lyon RoadTompkinsville, KY 42167
George Wilson, SuperintendentMonroe County Board of EducationP.O. Box 10Tompkinsville, KY 42167
Regina JacksonEnglish, Lucas, Priest & OwsleyP.O. Box 7701101 College StreetBowling Green, KY 42101
Footnotes
Footnotes
1 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).
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