Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Perry County Board of Education violated the Open Records Act in denying Hazard Herald reporter Randy Walters' undated request for "any and all documents, pictures, recordings, or statements made in the closed session of the Perry County Board of Education meeting held [on] Thursday[, October 21, 2004,]" to discuss "alleged improprieties of a sexual nature concerning the Superintendent of the Perry County Schools, John Paul Amis." For the reasons that follow, we find that although the original response issued by Board of Education Chairman, Donnie Spencer, was procedurally deficient, the facts presented support the Board's decision to withhold the disputed records.
By letter dated October 28, 2004, Perry County Board of Education Chairman Donnie R. Spencer denied Mr. Walters' request, advising him as follows:
Documents are precluded from inspection for many reasons, including when there would be an invasion of personal privacy, possible discipline of personnel, etc. The records reviewed during the closed session relate to a personnel matter and the disclosure of the materials could be and would in all probability be considered an invasion of personal privacy by the party involved.
Upon receipt of the Board's response, Mr. Walters initiated this appeal and notification of same was issued by this office on October 29, 2004.
On November 4, 2004, we received an unsigned facsimile transmission addressed to the undersigned Assistant Attorney General, from "Perry County Schools," containing the message, "Enclosed are some records we have released to Mr. Randy Walters." The "enclosed . . . records" consisted of a "Sworn Statement Denying Doctor Spencer's False Statement," an order of the Perry Circuit Court entered on October 4, 2004, in the case of Perry County Board of Education v. John Paul Amis, Case No. 03-CI-00727, a newspaper article entitled "Allegations Ensue at BOE before Election" that appeared on an undisclosed date in the The Kentucky River News, this office's Notification of Mr. Walters' appeal, a copy of Mr. Walters' original open records request, and a copy of Chairman Spencer's denial of that request. The return address on the hard copy version of these records, which we received shortly thereafter, identifies the sender as "Perry County Public Schools, Superintendent John Paul Amis."
On November 4, 2004, Chairman Spencer responded to this office's notification and elaborated on the Board's position. He advised:
At a regularly scheduled meeting of the Perry County Board of Education, information and materials were presented to Board members in closed session. The closed session was called because there was a discussion of a personnel matter that might involve discipline of personnel.
Some time ago, the Perry County Board of Education retained the services of Ken Henry of the firm of Pedley, Zielke, Gordinier & Pence, PLLC to represent it in a lawsuit filed against the Superintendent, Mr. John Paul Amis, on a contract issue. As a result of discovery and research performed by Mr. Henry as part of that lawsuit, he became aware of the contents of Mr. Amis' laptop computer. Furthermore, he interviewed certain witnesses who had information concerning Mr. Amis. The information gathered by Mr. Henry as part of that ongoing lawsuit would in all probability be very embarrassing to Mr. John Paul Amis and could lead to discipline of Mr. John Paul Amis. This is the reason for not sharing the materials provided at the meeting by Mr. Ken Henry.
Chairman Spencer concluded that the Board kept no minutes of the closed session, but that the minutes of the open session indicate that "the Board went into closed session, came out of closed session and that a motion was then made to refer the matter for further investigation with the appropriate state agency." 1
Unable to resolve the issues on appeal on the limited record before us, on November 10, 2004, this office propounded a series of questions to Superintendent Amis and the Perry County Public Schools to facilitate our review per KRS 61.880(2)(c), 2 copying Mr. Walters, Chairman Spencer, and Board attorney Alison Wells. Specifically, we asked that the Board "substantiate its partial denial of Mr. Walters' request by advising this office, in writing, whether final action has been taken in the disciplinary matter or a decision has been made to take no action." If final action has not been taken, we asked that the Board advise us what the status of the investigation is and what action remains to be taken. In addition, we asked that the Board describe the nature of the litigation styled Perry County Board of Education v. John Paul Amis, Case No. 03-CI-00727 (Perry Circuit Court). Finally, we asked that the Board provide us with copies of all records that were responsive to Mr. Walters' request, acknowledging our obligation not to disclose those records under KRS 61.880(2)(c). 3 In view of the time constraints imposed on this office in issuing its decision in an open records appeal, we asked that the Board respond within five days.
On November 12, 2004, Superintendent Amis notified this office that the only documents in his possession that were arguably responsive to Mr. Walters' request are the minutes of the October 21, 1004, Perry County School Board meeting. He explained:
On October 21, 2004 the Board went into closed session to discuss some litigation issues and my attorney and I was [sic] not allowed to attend this session. There were four board members, attorneys Ken Henry, Schyler Olt and Alison Wells involved in the closed session. My attorney and I was [sic] not provided any documents, information, etc. from anyone attending this closed session. I do not have any information other than the minutes from the regular session that I could share with anyone.
Superintendent Amis advised that the open records request that gave rise to this appeal was filed with the Board and not with him, but that he stood ready to assist in the resolution of this matter.
By letter dated November 15, 2004, Chairman Spencer notified this office that the disputed records are not in his possession or the possession of the Perry County School Board, but are instead in the possession of the attorney hired by the board to represent it in the case of Perry County Board of Education v. John Paul Amis, above, Ken Henry. Chairman Spencer provided this office with a copy of a letter he sent to Mr. Henry asking that Mr. Henry provide the disputed records to this office. In response to our questions, he observed:
With regard to the disciplinary matter or decision, no action has been taken at this time. Enclosed you will find a copy of a letter I sent to the appropriate agency requesting an investigation of these issues. 4 To my knowledge, an investigation has not been completed and there is no report of investigation.
You have also requested that the school district describe the nature of the litigation styled Perry County Board of Education v. John Paul Amis. A description of this case has been requested by counsel for the Perry County Board of Education, Hon. Ken Henry.
In a letter dated November 24, 2004, but received in this office on or about November 30, 2004, several days after the deadline for agency response, Mr. Henry responded on behalf of the Board. He advised:
This firm represents the Perry County Board of Education in a declaratory judgment action filed in the Perry Circuit Court styled Perry County Board of Education v. John Paul Amis, Civil Action No. 03-CI-00727. This action was filed upon motion by the Board seeking a declaration of rights pertaining to a contract under which Mr. Amis claims rights. The Board's position in this case is that Mr. Amis does not have an effective contract for the office of Superintendent of the Perry County Schools.
Schuyler Olt and I, on behalf of this firm, as well as Alison Wells, who is local Board counsel, were present during the executive session of the Board conducted on October 21, 2004. The context of the executive session of the Board on October 21 related to personnel issues that came to light during discovery in the Board's case with Mr. Amis. The focus of the executive session pertained to these personnel issues, and the only discussion related to the litigation had to do with how the information presented to the Board had been developed.
Mr. Henry provided this office with copies of the records in his possession that the Board reviewed in executive session on October 21 consisting of:
(1) a CD-ROM recording of a telephone interview I conducted on March 16, 2004 with [a former student]; 5 (2) a transcript of that telephone interview; (3) a CD-ROM containing computer images retrieved from a district laptop computer assigned to Mr. Amis for job-related purposes; and (4) three pages excerpted from a report prepared by a computer expert retained to examine the contents of the hard drive on Mr. Amis' laptop computer. These materials along with an audiotape recording of a statement made by [a former student] 6 (in the possession of Dr. Donnie R. Spencer) were presented to the Board in executive session on October 21.
He indicated that the documents that had been provided to Mr. Walters after his original open records request "were not Board records," and that he was not aware of the source of those records. Prompted by the delayed receipt of the Board's response, and by the serious nature of the issues raised, this office extended the deadline for issuing its decision in this matter under authority of KRS 61.880(2)(b), 7 issuing notification of same on November 30.
On December 6, 2004, Attorney Timothy Crawford provided this office with a copy of the initial response he and his client, Superintendent Amis, received from the Commissioner of Education, Kentucky Department of Education "regarding the documents which are also the subject of this open records appeal . . . [and which are] relevant to the matter pending before KDE." 8 In that letter, which was addressed to Chairman Spencer, Commissioner Gene Wilhoit and Deputy Commissioner Kevin Noland identified certain deficiencies under KRS 160.380(3), governing removal of superintendents, and in particular the Board's apparent failure to "spread on the minutes of the Board and give[] to the Superintendent, " written notice setting out the charges. Additionally, Commissioner Wilhoit and Deputy Commissioner Noland noted several omissions and conflicts in the evidentiary record. The Commissioner and Deputy Commissioner advised that KDE would "pursue completion of [their] review to the allegations made" upon receipt of information they requested, but concluded:
If based upon all the information, the Commissioner of Education is able to provide approval of the request [for removal] , the next step would be for the Perry County Board of Education, as the employing Board of the Superintendent, to consider the available evidence and the appropriate consequence. Pursuant to KRS 160.350(3), even assuming approval is provided by the Commissioner of Education, the Perry County Board of Education will need a vote of four/fifths (4/5) of the membership of the Board to remove its superintendent.
This office has received no notification of any subsequent developments relating to the Superintendent's removal.
It is the decision of this office that although the record on appeal does not support the Board's apparent reliance on KRS 61.878(1)(a), 9 the record does support the Board's decision to withhold the disputed records pursuant to KRS 61.878(1)(i) and (j), based on the fact that an investigation is ongoing and no final action has been taken in the matter of the Superintendent's removal. Moreover, we find that disclosure of some of those records would violate provisions of federal law found at 18 U.S.C. § 2251-2259, the Child Pornography Prevention Act, and that the Board's decision to withhold those records was also justified on the basis of KRS 61.878(1)(k), requiring public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation[.]" In so holding, we make no finding on the validity of the specific allegations leveled against Superintendent Amis. The investigation stemming from those allegations has not yet been concluded, nor has the question of his removal been resolved.
In general, records relating to allegations of impropriety concerning public employees in the course of their public employment are not shielded from disclosure by operation of KRS 61.878(1)(a). That provision authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), a police officer against whom allegations of misconduct had been leveled attempted to invoke KRS 61.878(1)(a), inter alia, as the basis for denying a request for the complaint containing those allegations. The Kentucky Court of Appeals rejected the officer's claim, notwithstanding the personal nature of the allegations against him, observing:
We believe the complaint against Palmer presents a matter of unique public interest. At the time of the complaint, Palmer was an Owensboro police officer, who was sworn to protect the public. The complaint charged specific acts of misconduct by Palmer while he was on duty. Since the question of the disclosure of the details of this alleged misconduct is the reason for this appeal, we will generally describe the alleged misconduct as Palmer neglecting his duty to the public by having an inappropriate relationship with another police officer while on duty. We believe the public has a legitimate interest in knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct under KRS 95.450. While the allegations of misconduct by Palmer are of a personal nature, we hold that the public disclosure of the complaint would not constitute a clearly unwarranted invasion of Palmer's personal privacy.
Palmer at 598; accord, OAG 91-41; 98-ORD-45; 99-ORD-39; 00-ORD-104; 02-ORD-140, 04-ORD-031 (recognizing that "[p]ublic service is a public trust[, and] this office has consistently held that the public has a right to know about [a public] employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold [that] either no privacy interest existed under the facts, or if a cognizable privacy interest existed that it was outweighed by the public's right to be informed.")
The records in dispute in the appeal before us form the basis of the allegations against Superintendent Amis, and, consistent with the authorities cited above, whatever privacy interest he may have in those records is clearly inferior to the public's interest in disclosure. 10 As the person who is "ultimately responsible for the management of the school system" 92-ORD-1145, p. 5., and in whom the public trust is reposed, the public has a heightened interest in records documenting allegations of impropriety that are leveled against him, and his privacy interest in those records is correspondingly reduced. We therefore find unpersuasive the Perry County Board of Education's argument that the disputed records are shielded from disclosure by KRS 61.878(1)(a), at least as that exception pertains to Superintendent Amis' privacy interests. 11
Nevertheless, the Board presents sufficient facts in the record on appeal to support nondisclosure of the disputed records on the basis of KRS 61.878(1)(i) and (j). Those exceptions authorize nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
It is well established that a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action. City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Co., Ky., 830 S.W.2d 373 (1992); Palmer v. Driggers, above; accord, 93-ORD-103; 01-ORD-83. Thus, in City of Louisville, above at 659, the Court of Appeals observed:
We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as part of those final determinations.
In Board of Medical Licensure, above at 956, the Court of Appeals reaffirmed this view, opining:
It is beyond contention that complaints which "initially spawned" any investigation . . . may not be excluded because the public "has a right to know what complaints have been made." It is clear then that . . . once final action is taken . . ., the initial complaints must be subject to public scrutiny.
It follows that a complaint, initiating or charging document, or any other document that spawns an investigation may be withheld until the investigation is concluded and final action taken, including a decision to take no action. See, e.g., 93-ORD-108, p. 2, (agency properly withheld complaint where "no final action had been taken . . . and the complaint was still under investigation").
As noted, the records in dispute in the appeal before us form the basis of the allegations against Superintendent Amis and are part and parcel of its own investigation as well as the charging document by which it referred the matter to the Department of Education for investigation. The latest letter received by this office confirms that both the Board's investigation and the Department's investigation are ongoing. Because final action has not been taken in the matter of Superintendent Amis' removal, we affirm the Board's decision to withhold the disputed records pursuant to KRS 61.878(1)(i) and (j).
Moreover, we find that those portions of the disputed records that relate to allegations concerning child pornography must be afforded permanent protection even after this matter is finally resolved. Although the Board did not invoke KRS 61.878(1)(k), 12 it is the decision of this office that the cited provision, operating in tandem with 18 U.S.C. § 2251-2259, prohibit disclosure of those records. This body of federal laws establish pervasion and all-encompassing prohibitions on dissemination of:
any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electron, mechanical, or other means, of sexually explicit conduct, where --
18 USC § 2256(8). To the extent that the disputed records contain materials which fall within the parameters of this definitional section, disclosure is prohibited by federal law.
As noted, the Perry County Board of Education did not invoke these provisions to support the denial of Mr. Walters' request. In general, it is incumbent on the agency, and not this office, to sustain its action in relation to an open records request. However, in Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996), the Kentucky Court of Appeals declined to "compound [the agency's] mistake" in failing to invoke the relevant exception by ordering disclosure of records made confidential by federal enactment. So too, this office recognizes that the Board's "error cannot be remedied by committing another." Edmondson at 859. We therefore find that the Board is foreclosed from releasing those records by 18 U.S.C. § 2251-2259 and KRS 61.878(1)(k). Consistent with the reasoning set forth above, the Board may withhold all records identified in Mr. Walters' request until this matter is concluded. If, after the matter is concluded, the Board receives a new request for the records, it is prohibited by federal law from releasing those records which fall within the parameters of 18 USC § 2256 (8), and should review the remaining records to insure that the privacy rights of alleged victims are protected.
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.
Footnotes
Footnotes
1 The Board subsequently contacted the Kentucky Department of Education, explaining that it had:
Met in regular session on [October] 21, 2004 and voted to refer to your attention certain information regarding Superintendent John Paul Amis.
The Board requested that KDE "conduct any further investigation . . . deem[ed] appropriate in relation to the information presented below."
2 KRS 61.880(2)(c) provides, in part:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 However, because any instance of child pornography raises grave issues relating to chi ld abuse, we do take this opportunity to address some important reporting requirements related to material of this sort. KRS 620.030 places a duty upon "any person" who believes that a child has been abused to cause a report to be made to a local law enforcement agency. Failure to report chid abuse is a Class B Misdemeanor. KRS 620.990(1). Pursuant to these statutory obligations, once this material was received into this Office, a report was directly made to the Kentucky Bureau of Investigation. However, we are not aware of whether similar reports were made by the school officials and attorneys involved in this open records case. Because of the grave nature of the material forwarded to this Office, we now take this opportunity to remind all persons reviewing this opinion of the statutory obligation to report any instances of child abuse to the proper law enforcement authorities.
4 This letter was not among the enclosures contained in Chairman Spencer's correspondence.
5 This individual was identified by name in Mr. Henry's correspondence, but we omit her name in deference to her privacy interests.
6 This individual was identified by name in Mr. Henry's correspondence, but we omit his name in deference to his privacy interest.
7 KRS 61.880(2)(b) provides, in part:
In unusual circumstances, the Attorney General may extend the twenty day time limit by sending written notice to the complaining party and a copy to the denying agency . . . .
8 See notes 1 and 4, above.
9 The Board cited no statutory exemption authorizing nondisclosure, in contravention of KRS 61.880(1), but its repeated references to the "personal privacy of the party involved," suggests that it intended to rely on KRS 61.878(1)(a).
10 We hasten to note that although Superintendent Amis' privacy rights are subordinate to the public's right to know, the privacy rights of those individuals whose images and names appear in the disputed records are obviously entitled to protection.
11 Although federal law ultimately prohibits disclosure of much of the material in dispute, it is apparent that the protection afforded by KRS 61.878(1)(a) also extends to the individuals whose images appear in those materials.
12 As noted above, KRS 61.878(1)(k) requires public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation.