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 Lincoln County High School properly relied on KRS 61.878(1)(i) and (j) in denying Advocate Messenger Managing Editor John A. Nelson's December 19, 2005, request for copies of "any communication, document, email, or memorandum, including what may appear in personnel file(s), which relate to the reason for the suspension of basketball coach Jeff Jackson, self-imposed or otherwise . . .[, including] any complaints or allegations connected to said suspension. " Having reviewed the disputed records, we find that the High School properly relied on the cited exemptions, and affirm its denial of The Advocate Messenger's request. We are nevertheless obliged to comment on certain records mismanagement issues which this appeal raises and which we have referred to the Kentucky Department for Libraries and Archives for additional inquiry.
On behalf of the High School, Athletic Director Julie Lair denied Mr. Nelson's request on December 22, 2005, explaining that "all of the records in [the High School's] possession pertaining to the suspension fall under the Open Records Act exemption KRS § 61.878(1) and (j) [sic]." Ms. Lair nevertheless agreed to "share information regarding the suspension. " She explained:
Coach Jackson violated the summer dead period. This violation was reported to the [Kentucky High School Athletic Association] and after conversations with them, we as a school invoked a one game suspension for this violation.
In closing, Ms. Lair noted that "KHSAA was made aware of the suspension verbally, therefore there is no written record of this conversation."
Shortly thereafter, 1 The Advocate Messenger initiated this appeal through Mr. Nelson, asserting that because "action has been taken, the documents are no longer 'preliminary,' and [The Advocate Messenger] is entitled to them." This right of access, Mr. Nelson argued, extends to "all communication on the matter, from complaint to resolution, and . . . precedent exists in both opinion and litigation that supports [the newspaper's] position."
In supplemental correspondence directed to this office following commencement of The Advocate Messenger's appeal, attorney Stephanie Baker Wilcher amplified on the High School's position. By way of factual background, Ms. Wilcher explained:
Julie Lair, one of two Athletic Directors at Lincoln County High School, was verbally notified by the Kentucky High School Athletic Association ("KHSAA") that the KHSAA had received an anonymous letter alleging that the Lincoln County Boys' basketball coach had violated the summer dead period. Neither the School, nor any of its employees received a written notice of this allegation. This verbal notice from the KHSAA was Ms. Lair's, and the School's, first notification of the allegation. Ms. Lair investigated the allegation on behalf of the school. As a result of her investigation, the basketball coach was suspended for one game. No written record of the final action exists. The KHSAA has not undertaken an independent investigation of the allegation and the allegation did not conform to the KHSAA's requirements for official allegations because it was sent anonymously.
The records in question include only a handful of e-mails containing information gathered by Ms. Lair during her investigation and opinions and recommendations as to what sanctions could be appropriate for a dead period rule violation. None of the e-mails represents or incorporates the final one-game suspension enforced by the School. Because Ms. Lair's efforts are investigative and preliminary in nature, and no written notice of the final action exists, the School maintains its denial of Mr. Nelson's open records request is consistent with the exemption found in KRS 61.878(1)(i) and (j).
In support, Ms. Wilcher cited 02-ORD-199 and a series of opinions issued by Kentucky's courts affirming the right of a public agency to withhold investigative materials unless they are adopted as part of a final agency action and are therefore not exempt.
Unable to resolve this appeal on the written record before us, on January 31, 2006, this office propounded a series of questions to Lincoln County High School pursuant to KRS 61.880(2)(c). 2 In addition, we asked that the High School furnish us with copies of the disputed records for in camera inspection. Our review of the High School's written response to our questions confirms the following salient facts:
. KHSAA's initial notification of receipt of the complaint that spawned Ms. Lair's investigation was verbally communicated to Ms. Lair, in August, 2005, by KHSAA Assistant Commissioner Julian Tackett. Sometime later, however, Mr. Tacket faxed "a copy of a one-page, typewritten document outlining the allegation." Although Mr. Tackett did not identify the author of the faxed document, "Ms. Lair underst[ood] that the document was an anonymous letter received by KHSAA."
. Ms. Lair completed her investigation of the anonymous complaint on August 23, 2005, "and implemented Jeff Jackson's punishment of a one-game suspension on December 2, 2005." Because she considered the matter closed, Ms. Lair "discarded the faxed document received from KHSAA outlining the allegation." She later learned that KHSAA "did not retain the original document."
. Because KHSAA did not mandate an official investigation, the High School conducted an informal investigation. Consequently, "no documentation exists surrounding the notification given to Coach Jackson regarding his suspension. " He was orally notified of the suspension on August 26, 2005.
In response to our request, the High School provided us with copies of pertinent KHSAA bylaws, pertinent excerpts from the KHSAA 2005-06 Handbook, and pertinent portions of Lincoln County Board of Education Policies.
The High School also provided us with copies of the "handful of emails containing information gathered by Ms. Lair during her investigation . . . ." Although we cannot disclose the content of those emails, they can generally be described as a series of exchanges conducted on August 17, 2005, and prompted by a matter unrelated to the allegations concerning Jeff Jackson. Upon inquiry, Ms. Lair received a fax from KHSAA containing the allegations. 3 In an August 18 email to Mr. Tackett, Ms. Lair communicated her findings and recommended disciplinary action that was not ultimately adopted by the High School. It is for this reason that we must affirm Lincoln County High School's denial of The Advocate Messenger's request. Because the undocumented final disciplinary action taken by the High School did not track the disciplinary action Ms. Lair recommended, we must infer that the High School did not adopt her findings or recommendations as part of its final action. 4
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended. " KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham, that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
Guided by these principles, as well as an evolving body of caselaw, the Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only if they are adopted by the agency as part of its final action. City of Louisville v. Courier-Journal and Louisville Time, 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 Times Co., Ky., 830 S.W.2d 373 (1992); 00-ORD-168; compare 00-ORD-89.
We are aware of no existing legal authority supporting The Advocate Messenger's position that once action is taken, documents relating thereto in some form or fashion are no longer preliminary and must be disclosed in toto. The Advocate Messenger cites no such specific authority. In our view, the proper standard for determining when investigative records, such as those in dispute, forfeit their preliminary character is found at page 659 of City of Louisville, above:
It is the opinion of this Court that subsections [(i)] and [(j)] protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
Accord, Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App. 663 S.W.2d 953, 956, 957 (1983) holding that "once such notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost," and "those documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records; " and University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992) ratifying the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." "To adopt," this office has observed, "means 'to accept, appropriate, choose, or select,' Black's Law Dictionary 45 (5th ed. 1979), or '[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994). 02-ORD-18, p. 6, citing 01-ORD-83. In each of these decisions, the Attorney General reaffirmed the longstanding principle that only if notes or recommendations are adopted by the agency as part of its action is the preliminary characterization of those documents lost. The triggering event for forfeiture of preliminary status is, then, not the occurrence of final action, but the occurrence of final action accompanied by some indication that the underlying preliminary records were adopted by the agency as part of the action.
There is no such indication in the record on appeal before us. Apparently, the ultimate decisionmaker in the matter of disciplining Coach Jackson rejected, in whole or in part, Ms. Lair's findings and recommendations for the imposition of disciplinary measures and imposed disciplinary measures that differed substantially from her recommendation. In so doing, the ultimate decisionmaker did not "accept," "assent" to, or "make [his or her] own" Ms. Lair's findings and recommendations, and those findings and recommendations therefore retain their preliminary characterization. Compare, 02-ORD-18 (review of disputed records did not support City of Louisville Division of Police's assertion that notes and recommendations found in investigative file were not adopted as part of its action); 02-ORD-25 (Covington Police Department adopted preliminary investigative file prepared by Professional Compliance Board recommending dismissal of complaint, and the file's preliminary character was thereafter lost).
Nevertheless, we would be remiss in failing to note that the premature destruction of the anonymous complaint that spawned Ms. Lair's investigation raises serious records management issues. Existing caselaw firmly establishes that:
complaints which "initially spawned" any investigation of . . . [public employees or officials] may not be excluded because the public "has a right to know what complaints have been made." . . . [O]nce final action is taken, . . . the initial complaints must be subject to public scrutiny. . . . [Any] attempt to categorize complaints as formal public complaints and private individual complaints has no bearing on whether such complaints must be released. Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878(1)(g) or (h) [now (i) and (j)].
Kentucky State Board of Medical Licensure, at 956. Under this line of reasoning, The Advocate Messenger would be entitled to a copy of the anonymous compliant which prompted Ms. Lair's investigation and which the High School acknowledges was once in her possession.
Lincoln County High School cannot produce for inspection and copying a record that was prematurely destroyed. Prior to 1994, our analysis would have ended here. However, in that year the intent of the Open Records Act was statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of KRS 171.410 to 171.740, dealing with the management of public records, and KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and KRS 194A.146 dealing with the coordination of strategic planning for computerized information systems." The General Assembly has thus recognized "an essential relationship" between the intent of the Open Records Act and statutes relating to records management. Id. Ineffective records management frustrates any arguable right of access to public records and is inimical to both the spirit and the letter of the Act.
Our review of the Public School District Model Records Retention Schedule, the pertinent portion of which is attached, indicates that complaints against staff, Series No. L2639, must be retained by the District and can only be "[d]estroy[ed] 5 years after staff retirement or termination." Failure to maintain the anonymous complaint was therefore inconsistent with the legal retention requirements. While this office cannot declare the High School's failure to produce a record that was prematurely destroyed a violation of the Open Records Act, we believe that its failure to implement an adequate program for insuring records preservation constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4). Accord, 05-ORD-141 (enclosed). These issues warrant review by the Department for Libraries and Archives under the provision of KRS 61.8715, and we have referred this matter to the Department for additional inquiries as that agency deems warranted.
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 twenty business day deadline for issuing a decision in The Advocate Messengers' appeal was extended for thirty business days, pursuant to KRS 61.880(2)(b)1., to enable this office "to obtain additional documentation" from the High School and "a copy of the records involved."
2 KRS 61.880(2)(c) provides:
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 Without disclosing specific details of the email exchanges, a review of those emails suggests that the KHSAA's role in this matter may have been understated.
4 We note one unexplained omission in the record on appeal. In its response to our KRS 61.880(2)(c) inquiry, the High School states that Ms. Lair "completed her investigation . . . on August 23 . . . and implemented Jeff Jackson's punishment of a one-game suspension on December 2, 2005." Since this was not the "punishment" Ms. Lair recommended in her August 18 email to Mr. Tackett, it is unclear when her recommendation was rejected, by whom it was rejected, and why she was charged with "implement[ing] the . . . punishment of a one-game suspension . . . ."