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 Crittenden County Board of Education violated the Open Records Act in denying Crittenden Press Editor Chris Evans' request for copies of records relating to the removal of Superintendent Fredericka Hargis. For the reasons that follow, we find that the Board's response was procedurally and substantively deficient, and that the Board failed to meet its statutory burden of proof in denying Mr. Evans' request.
In an emailed open records request dated December 29, 2004, Mr. Evans asked that the Board provide him with copies of:
. Affidavits, depositions, files, and any other documents pertaining to the Board's official investigation of the Fredericka Hargis matter . . . [including] any responses to such documents that have been made by Hargis or her attorney throughout the course of this issue[;]
. Resumes, applications, letters of support, cover sheets, letters of introduction, or any other documents regarding the application, interview, or hiring of Fredericka Hargis by the Jefferson County School System in the spring of 2004.
Board Attorney Zachary Greenwell responded to Mr. Evans' request on January 3, 2005, advising him as follows:
[T]he only documents from the removal hearing of Ms. Hargis that can be disclosed are the minutes and the Board's findings as previously disclosed to the press. All other documents have been requested to remain confidential by Ms. Hargis and as a part of the closed session record, are, in my opinion, exempt from the Open Records Act.
Shortly, thereafter, Mr. Evans initiated this appeal asserting that "the requested records are not subject to any exclusion under the Kentucky Open Records Act and . . . the Board makes no attempt to state as a matter of record the precise exclusion . . . for denial."
On January 13, 2005, the Attorney General issued notification of receipt of Mr. Evans' appeal to Acting Superintendent Janie Tomek and Mr. Greenwell. Pursuant to 40 KAR 1:030 Section 2, this office advised the Board that it could respond to the appeal on or before January 20, 2005. The record on appeal contains no supplemental agency response, and we must therefore assume that the Board elected not to avail itself of the opportunity to elaborate on the statutory bases for the denial of Mr. Evans' request. Given the deficiencies in the Board's initial denial of that request, and its failure to supplement the denial upon receipt of this office's notification of appeal, we conclude that the Board violated KRS 61.880(1), imposing certain procedural requirements on public agencies, and that it failed to meet its statutorily assigned burden of proof in sustaining the denial of Mr. Evans' request. KRS 61.880(2)(c).
The Crittenden County Board of Education's statutory obligations are, as noted, codified at KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In Edmondson v. Alig, Ky. App., 926 S.W.2d 956 (1996), the Kentucky Court of Appeals construed this language to require "the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. "A limited and perfunctory response" to an open records request, the court concluded, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. Consistent with the longstanding position taken by this office that the requirements set forth at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," 93-OD-125, p. 5, we find that the Board's response to Mr. Evans' request was deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld." The Board's assertion that all documents other than the minutes from the removal hearing and the Board's findings "have been requested to remain confidential by Ms. Hargis and as a part of the closed session record are . . . exempt from the Open Records Act" does not represent a legally recognized basis for denying Mr. Evans' request. Accordingly, we find that the Board violated KRS 61.880(1) in denying that request without reference to a specific exception authorizing nondisclosure.
Turning to the substantive issue on appeal, we find that the Board improperly denied Mr. Evans access to documents pertaining to the investigation of the incident involving Fredericka Hargis that resulted in her termination as Superintendent of the Crittenden County Public Schools and documents in its possession relating to her application to, and employment by, the Jefferson County Public Schools. With reference to the issue of the Board's investigation and decision to terminate Ms. Hargis, we find that 05-ORD-005 is instructive. In that decision, the Attorney General rejected the Perry County Board of Education's argument that documents relating to "alleged improprieties of a sexual nature concerning the Superintendent" and reviewed in a closed session conducted for the purpose of discussing the superintendent's removal "would in all probability be considered an invasion of personal privacy by the party involved." Although we ultimately affirmed the Board's denial of the request on the basis of KRS 61.878(1)(i) and (j), inasmuch as the "investigation [was] ongoing and no final action ha[d] been taken in the matter of the Superintendent's removal, " we held that the Board's apparent reliance on KRS 61.878(1)(a) was misplaced. 1
At pages eight and nine of 05-ORD-005, we observed:
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:
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:
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 [the] Superintendent, 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. 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 [the] Superintendent ['s] privacy interests.
05-ORD-005, p. 8, 9.
Extending the logic of 05-ORD-005 to the appeal before us, we find that Ms. Hargis' desire that records generated in the course of the Board's investigation into the incident which gave rise to her removal be shielded from disclosure can be accorded no greater weight or deference than the Perry County Superintendent's unsubstantiated privacy interests. 2 She, too, was "ultimately responsible for the management of the school system, " 92-ORD-1145, p. 5, and in her the public's trust had also been reposed. Accordingly, we find that the public's interest in reviewing the documents that formed the basis of the Board's decision to remove her is superior to her desire for confidentiality and any privacy interest belatedly asserted on her behalf. 3
With reference to the remaining documents requested by Mr. Evans, and for which the Board offered no response, we find that if the Board maintains records relating to Ms. Hargis' "application, interview, or hiring . . . by the Jefferson County School System in the spring of 2004," 4 those records must be disclosed to the extent they reflect on her qualifications for employment with that school system. Here again, we are on familiar ground having recognized, on many occasions, that:
inspection of the personnel records of public employees, such as applications for employment and resumes, which contain relevant prior work experience and educational qualifications, does not constitute an invasion of privacy. OAG 89-90; OAG 90-113; OAG 91-48; OAG 91-155; OAG 91-176; OAG 91-202; OAG 92-59; OAG 92-85. These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information is outweighed by the public's right to know that that employee is qualified for public employment. Thus, in OAG 89-90, at p. 8, we observed:
Nevertheless, we also concluded in OAG 89-90 that information on an application or resume that is of a personal nature, within the meaning of KRS 61.878(1)(a), may be separated and redacted in accordance with KRS 61.878(4). Such information includes, but is not limited to, an employee's home address, social security number, and medical information.
93-ORD-32, p. 4, 5. With reference to the names of persons providing recommendations, and the letters of recommendation themselves, we observed:
This Office has previously recognized that "a person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, at p. 3. Although the public's interest in disclosure of the references submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that [agencies] must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature relative to the references, including but not limited to their phone numbers, addresses, and relationship to the applicant.
We do not mean to suggest that [agencies] must release letters of reference submitted on behalf of its employees. In OAG 91-48, we expressly declined to extend the reasoning of OAG 89-90 to letters of reference. There, we held that inspection of letters of reference could be denied pursuant to KRS 61.878(1)[(i)], which exempts from public inspection "correspondence with private individuals." Such letters are not "correspondence between two public officials on public business within the contemplation of the Act, and are therefore exempt. " OAG 91-48, at p. 3.
93-ORD-32, p. 56.
As above, we extend the logic of the cited decisions to the instant appeal and conclude that if the Crittenden County Board of Education maintains any records responsive to this portion of Mr. Evans' request, those records must be disclosed. Consistent with the analysis set forth above, the Board may redact personal information, such as Ms. Hargis' home address, social security number, and medical information, and need only disclose the names of persons furnishing references (or letters of support) and not the letters of reference themselves. If the Board maintains no responsive records, it is obligated to affirmatively so state. 02-ORD-144, p. 3 (holding that "an agency's inability to produce records due to the nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD59, p. 5; 01-ORD-220, p. 6. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient" ); accord, 02-ORD-163; 03-ORD-212.
In sum, we find that the Crittenden County Board of Education violated the Open Records Act in denying Crittenden Press Editor Chris Evans' request for records relating to the removal of Fredericka Hargis and her subsequent employment by the Jefferson County Public Schools, and that it should take immediate measures to rectify the violation.
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 In addition to the fact that no final action had been taken and that nondisclosure of the disputed records was therefore justified on the basis of KRS 61.878(1)(i) and (j), the Attorney General held 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)." 05-ORD-005, p. 7.
2 We note that the details of that incident have been reported by the Associated Press. In a July 23, 2004, Cincinnati Enquirer article, the AP recounted that the Jefferson County Public Schools had appointed Ms. Hargis a principal in one of its schools while "awaiting trial on a felony charge" stemming from an incident in which "she ran over the foot of Tracy Rozwalka after a confrontation in the parking lot of a beauty shop regarding a letter critical of Hargis and other school personnel."
3 We find no support in the law for the Board's assertion that the requested records qualify for exclusion under the Open Records Act because they were discussed in a closed session. As this office has often noted, "the Open Records Act and the Open Meetings Act occasionally work at cross purposes and cannot be harmonized. Thus, the Open Meetings Act may require a public agency to discuss in an open and public meeting a record that qualifies for exclusion from public inspection by one or more of the exceptions to the Open Records Act. " 00-ORD-140, p. 6, n. 4. The converse of this proposition is equally true. See 01-OMD-45, note 4.
4 Mr. Evans specifically requested "resumes, applications, letters of support, cover sheets, [and] letters of introduction . . . ."