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 Carter County Board of Education violated the Open Records Act in the disposition of Randy Skaggs' October 3, 2007, request for records relating to Glenna Johnson, a school bus driver employed by the Board. Specifically, Mr. Skaggs requested access to "notations or grievances filed or recorded by [Terry Maggard, Supervisor of Pupil Transportation]," "all pertinent records . . . detailing . . . all kinds of driving irregularities, speeding tickets, [and] citations," and "all other records . . . pertaining to her job and performance as a school bus driver . . . ." Mr. Skaggs' request was directed to Mr. Maggard. Having received no response to his request, Mr. Skaggs initiated this appeal on October 16, 2007. For the reasons that follow, we find that the Board's disposition of Mr. Skaggs' request constitutes a procedural and substantive violation of the Open Records Act.
Upon receipt of this office's notification of Mr. Skaggs' appeal, the Carter County Board of Education responded through its attorney W. Jeffrey Scott. According to Mr. Scott, ours was "the first notification that [he] had of this request." He attached a copy of the Board's response, dated October 25, 2007, denying Mr. Skaggs' request in its entirety. Mr. Scott explained:
With respect to the first request, I can tell you that any grievances filed concerning job performance of an employee are internal matters concerning personnel and are ones handled by the appropriate supervisory person within the School District. Those matters are not disclosable and the district makes no indication of whether any exist. However, any that might be in existence are ones which are privileged and are not to be disseminated under this type of request.
The remaining requests that you make are ones concerning court matters such as speeding tickets or citations which would be readily available through the district court clerk's office of either Carter or Elliott County, or any other clerk's office if you believe that some were issued in other counties.
It is the decision of this office that the Carter County Board of Education's response to Mr. Skaggs' request was procedurally deficient and substantively incorrect.
The Carter County Board of Education violated KRS 61.880(1) in failing to respond to Mr. Skaggs' request in writing and within three business days. 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 construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has opined that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 3. A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act -- much less . . . amount[] to substantial compliance." Id. The failure to respond in any fashion is particularly egregious.
In its belated response to Mr. Skaggs' appeal, the Carter County Board of Education does not deny receipt of his request. Assuming for the sake of argument that the request was originally misdirected, i.e., that Mr. Maggard was not the official custodian of the records Mr. Skaggs sought, it was nevertheless incumbent on him to insure that the request was forwarded to the official custodian for timely processing and written response or, at a minimum, to promptly notify Mr. Skaggs that he did not have custody of the requested records and provide him with the name of the agency's custodian of records. 1 On this issue, we find that Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006) is controlling. There, the Kentucky Court of Appeals held that "delivery to the office of the [agency] was sufficient to trigger [the agency's] obligation," and that to require personal delivery to a particular public official "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged." Public agency inaction is not a viable option under the Open Records Act. Having thus determined that its failure to respond constituted a violation of KRS 61.880(1), we urge the Carter County Board of Education to review the cited provision to insure that future responses conform with the requirements of the Open Records Act.
Turning to the substantive issues in this appeal, we find no support in existing legal authority for the argument, advanced by that Board, that "grievances filed concerning job performance of an employee are internal matters concerning personnel," and that any such grievances relating to Ms. Johnson "are privileged and . . . not to be disseminated under this request." The Board cites no exception to the Open Records Act authorizing nondisclosure of disciplinary records, and this office, as well as the courts, have consistently recognized the public's right of access to such records when final disciplinary action has been taken or a decision to take no disciplinary action has been made. See, e.g., Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); OAG 81-345; 93-ORD-117; 95-ORD-47; 99-ORD-164; 00-ORD-5; 02-ORD-140; 04-ORD-031. Although we are mindful of the principle that "the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context," 2 this office has generally held that the privacy interests of public employees against whom complaints or grievances have been leveled or allegations made, and the final action relative to those complaints, grievances, or allegations, including the decision to take no action, are outweighed by the public interest in monitoring agency action. Thus, at pages 2 and 3 of 96-ORD-86, we observed:
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 88-25, p. 3; see also , City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists, above; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
OAG 91-41, p. 5; see also 98-ORD-45; 99-ORD-39; 00-ORD-104.
The authorities cited represent a small fraction of the existing legal authorities mandating disclosure of records reflecting allegations of public employee misconduct (grievances and complaints), and resulting disciplinary action (including the decision to take no action). Most importantly, we direct the Carter County Board of Education's attention to the Kentucky Court of Appeals' decision in Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). In Palmer, the court was asked to determine if records relating to a former police officer, who resigned prior to the imposition of disciplinary measures by the agency, were properly withheld under authority of, inter alia, KRS 61.878(1)(a). Concluding that the agency's reliance on that exception was misplaced, the court observed:
[W]e hold that the public has a legitimate interest in the information sought by the newspaper. Unlike Zink and Kentucky Board of Examiners of Psychologists, the information sought by the newspaper in the present case does not contain information concerning an innocent, private citizen. In fact, the only parties that would have standing to argue that the information contained in the complaint is embarrassing or humiliating to them would be Palmer and Driggers [the police officers].
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 . . . . 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 . . . . 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, 599.
Extending this analysis to the issue now before us we find that as a public agency employee charged with ensuring the welfare and safety of the students she transports on a school bus, any privacy interest Ms. Johnson might have in disciplinary records relating to her in the discharge of her duties as a bus driver must yield to the public's interest in insuring that the Carter County Board of Education "promptly, responsibly, and thoroughly" investigated the allegations and took appropriate action relative thereto. Board of Examiners at 328. As the Court observed in the latter case:
The public's right to know under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Board of Examiners at 328.
Having refused to disclose any responsive records, or even acknowledge the existence of responsive records, the Carter County Board of Education has "effectually [thwarted] the public interest in regulation." Id. Given the fact that the Carter County Board of Education has the burden of proof in sustaining its denial, 3 that it has failed to meet this burden of proof, and that overwhelming weight of legal authority is contrary to the position it takes, we find that the Board violated the Open Records Act in denying Mr. Skaggs' request for disciplinary records relating to Ms. Johnson.
We find equally indefensible the Board's refusal to disclose, or even acknowledge the existence of, any records documenting driving irregularities committed by Ms. Johnson such as speeding tickets or citations. Although it is not altogether clear whether the Board maintains copies of speeding tickets or citations issued to its bus drivers while they are discharging their public duties, if such records reside in its custody it is incumbent on the Board to produce them for inspection.
KRS 61.872(1) states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided. . . ." More specifically, KRS 61.880(1) states that "[e]ach 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." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Nowhere in these provisions do we find a requirement that the agency both prepare and possess the requested records. 4 Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could also be obtained.
Rather, in construing these provisions the Attorney General has recognized on several occasions that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card); and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet).
It is therefore our decision that the Carter County Board of Education violated the Open Records Act in denying Mr. Skaggs' request for records reflecting driving irregularities committed by Ms. Johnson, including citations or speeding tickets. If it has not already done so, the board should review all files, including but not limited to Ms. Johnson's personnel file, in which such records might be maintained, and, if responsive records are located, provide Mr. Skaggs with copies of those records at a copying cost of no more than ten cents per page. See Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985).
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 KRS 61.872(4) addresses this situation by providing:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
2 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, 826 S.W.2d 324, 328 (Ky. 1992).
3 KRS 61.880(2)(c) thus provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. 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.
(Emphasis added.)
4 As we have in the past, "We attach significance to the use of the disjunctive particle 'or' rather than the conjunction 'and.'" 98-OMD-94, p. 5.