Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Christian County Public School District violated the Open Records Act in denying Kentucky New Era reporter Joe Parrino's April 21, 2008, request for copies of all written reprimands issued to Gwendolyn Parker, Patricia Dawson, and Chris Dudley during their employment with the District, as well as all written reprimands issued to any teacher at Martin Luther King Jr. Elementary School and "any teacher/ administrator at Morningside Elementary School or Highland Elementary School who now works at MLK." For the reasons that follow, we find that the District's response was procedurally and substantively deficient, but affirm its reliance on KRS 161.790(10) to deny those portions of Mr. Parrino's request that implicate private reprimands.
In a response dated April 24, 2008, District Communications Director Regan Huneycutt denied Mr. Parrino's request. She advised:
With respect to your broad request for any written reprimands for employees and administrators at Martin Luther King Jr. Elementary School, all documents that might be responsive to your request are exempt from public disclosure by KRS 61.878(1)(a).
As I explained in my previous response, I will not be able to furnish any documents related to Cassandra Faughn because she is not an employee of Christian County Public Schools and therefore Christian County Public Schools does not maintain a personnel file for her.
Shortly thereafter, the Kentucky New Era initiated this appeal questioning the district's reliance on KRS 61.878(1)(a) to support nondisclosure of the disputed disciplinary records in spite of the overwhelming weight of legal authority to the contrary.
In supplemental correspondence directed to this office following commencement of the Kentucky New Era's appeal, the District introduced additional arguments in support of its denial. For the first time the District invoked KRS 161.790(10), authorizing superintendents to "impose other sanctions [as an alternative to termination of a teacher's contract, and upon notifying the board and providing written notification to the teacher of the charge,] including suspension without pay, public reprimand, or private reprimand. " It was the District's position that:
To permit the disclosure of the documents responsive to this request would render meaningless the private reprimand/ public reprimand distinction made by the specific provisions of KRS 161.790.
. . .
Furthermore, the superintendent, when acting with respect to the discipline of classified employees, has the authority pursuant to KRS 160.390, 161.011, 1 and applicable Board Policy, to privately reprimand classified employees. The Kentucky Open Records Act should not be read so broadly as to remove that disciplinary option from superintendents across the state.
In support, the District attached nineteen pages of responsive records for in camera inspection. 2
On June 9, 2006, the Kentucky New Era challenged the District's belated invocation of KRS 161.790(10) asserting that the agency "should be estopped from introducing on appeal a legal theory that was never raised in its original denial." Additionally, the New Era argued that KRS 161.790(10) is inapplicable to the requested records, observing:
KRS 161.790 governs the acts of a school superintendent, not outside parties such as parents or newspapers. It allows a superintendent to make a public or private reprimand, but it does not stretch so far as to shield from view any records relating to a reprimand, just because the superintendent makes it privately. If that were the case, a superintendent could characterize every reprimand as "private" to avoid the knowledge of parents or concerned citizens to whom the school system is responsible. This is in direct contravention of Kentucky case law and former Attorney General opinions acknowledging 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 91-198 at 4. The law is clear that charging documents 3 and final reprimands are public record. City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).
Objecting to the District "rais[ing] a last-minute legal theory, [and] reading new law into a settled issue, to shield itself from statutes that have long been applied to other teachers and other school systems in this state," the Kentucky New Era urged this office to issue a decision in its favor. Although we have located no decision of this office affirming a school district's reliance on KRS 161.790(10), that provision having never been invoked by a district as the basis for withholding teacher disciplinary records, we must affirm the Christian County Public School District's reliance on that statute, as it relates to the three private reprimands furnished to this office for in camera inspection, in light of its clear and unambiguous language. Accord, 01-ORD-139. Nevertheless, we find that the District's response was procedurally deficient, insofar as it did not address those portions of the New Era's request that implicated public reprimands, and substantively incorrect, insofar as those public reprimands were not disclosed to the requester.
We fully concur with the Kentucky New Era in the view that disciplinary records relating to public school employees, including teachers, are not shielded from public inspection by KRS 61.878(1)(a). Numerous decisions of this office, and indeed of the courts, recognize that "[t]he unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment, " Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing KRS 61.871, and this principle of law has regularly been applied to records reflecting disciplinary actions imposed on public agency employees, including public school employees. See, e.g., Palmer v. Driggers, 60 S.W.3d 51 (Ky. App. 2001) (complaint against police officer); 95-ORD-47 (complaints against school teacher) . The public's right to know when an individual, in whose hands the education and care of Kentucky's children is entrusted, has been disciplined for misconduct overrides virtually any privacy interest that could be articulated on behalf of the teacher.
In 95-ORD-47 this office was asked to determine if a school district properly relied on a truncated version of KRS 161.790 in denying a request for teacher disciplinary records based on the argument that Section (5) 4 of that statute permitted a private hearing at the discretion of the teacher, and that records relating thereto were, ipso facto, private. At page 3 of that decision, we opined:
Although KRS 161.790[(6)] authorizes a private hearing at the discretion of the teacher charged with misconduct, neither that provision nor any other provision of KRS 161.790 permits an agency to withhold records relating to contract termination. Absent a specific confidentiality provision in Chapter 161, the Open Records Act governs. All nonexempt public records relating to the proceedings are subject to examination "even though such examination may cause an inconvenience or embarrassment to public officials or others." KRS 61.871. Although the legislature has recognized a teacher's right to a private hearing on contract termination, we reject the notion that the legislature also intended to shield that teacher from public scrutiny relative to the complaints lodged against him or her and the tribunal's final action. Any other interpretation of Chapter 161 is contrary to the statement found in KRS 61.871, to wit, "[T]he basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest . . . ."
(Emphasis added.) Since that decision was issued, the General Assembly has enacted "a specific confidentiality provision in Chapter 161," applicable on those presumably rare occasions where, as an alternative to termination of a teacher's contract, the superintendent elects to "impose other sanctions, including suspension without pay, public reprimand, or private reprimand. " This brings us squarely within the realm of KRS 61.878(1)(l) authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In 01-ORD-139, the Attorney General affirmed the denial of an open records request for a copy of a written reprimand issued by the licensure board which regulates architects to one of its licensees. The board relied on KRS 61.878(1)(l), and KRS 323.120(1), a statute authorizing the board, inter alia, to "issue a private or public reprimand . . . ," asserting:
The use of the term "private reprimand, " juxtaposed as it is with the term "public reprimand, " demonstrates that the General Assembly has explicitly given the Board the power to take disciplinary actions that are not subject to public disclosure. Although the term "private" is not defined by statute, well-established rules of statutory construction allow one to derive the meaning of this term. Courts give statutory language its literal meaning unless to do so would lead to absurd or wholly unreasonable results. Kentucky Unemployment Insurance Co. v. Jones, 809 S.W.2d 715 (Ky. App. 1991). The purpose for doing this is to insure that the general purpose and intent of the legislature is carried out in the application of the statute. Department of Revenue v. Miller, 303 822, 199 S.W.2d 622 (Ky. 1947). Indeed, where the intended meaning of a statute is clear from the language of the statute as a whole, then the terms used by the legislature must be afforded their common usage meaning. Dept. of Alcoholic Beverage Control v. Liquor Outlet, Inc., 734 S.W.2d 816 (Ky. App. 1987); Terhune v. Commonwealth, 907 S.W.2d 779 (Ky. App. 1995).
By the very nature of the language of the statute it is clear that a private reprimand is not public. "Private" is defined in Webster's New World Dictionary 468 (1990) as "not open to or controlled by the public," "for an individual person," and "secret." If a private reprimand was interpreted as not being confidential, then it would be identical to a public reprimand. Another long standing rule of statutory construction is that every word and clause should be given effect and none rendered meaningless. The General Assembly clearly intended that there be two types of reprimands, one which is public and open to disclosure and one which is confidential. Therefore, if a licensee's disciplinary file contains a private reprimand, it is not public record. To rule otherwise would produce an absurd result and effectively eliminate the term private from KRS 323.120.
KRS 61.878(1)(l) operates in tandem with otherwise unrelated legislative enactments by which access to public records is restricted. See OAG 00-ORD-118. Here, KRS 323.120 gives the Board the authority to issue private reprimands in those cases where such disciplinary action is appropriate. In enacting this section, the General Assembly gave the Board the sole authority to decide the gravity of the disciplinary action to be imposed, including whether the action should be subjected to the stigma of public censure. The Board, in making this decision, can consider such factors as the previous disciplinary history of the licensee, whether the private reprimand will have the desired deterrent effect on this licensee, and the licensee's evidence regarding the nature of the underlying events and any mitigating facts or circumstances that may come into play.
01-ORD-139, p. 2-3.
Applying this reasoning to the issue before us, we find that the District properly denied that portion of the Kentucky New Era's request to which the three private reprimands, tendered to this office for in camera inspection, are responsive. The public's right to know about teacher misconduct and resulting disciplinary action must yield to the legislative prerogative. 5 We therefore conclude that the District did not violate the Open Records Act in withholding these private reprimands.
Having so concluded, we nevertheless find that the District's response to the News Era's request was procedurally and substantively deficient insofar as it did not state a legally sufficient basis for refusing to disclose public reprimands issued to the named employees, any other reprimands issued to teachers at Martin Luther King Jr. Elementary School, or "any teacher/ administrators at Morningside Elementary School or Highland Elementary School who now works at MLK." Such records, if they exist, are subject to public inspection under the authorities cited above. If no responsive records exist, the District is statutorily obligated to specifically so indicate. 01-ORD-38. Until it has done so, its duties under the Open Records Act will not be fully discharged.
In closing, we are obligated to comment on the Kentucky New Era's argument that the District "should be estopped from introducing on appeal a legal theory that was never raised in its original denial." Despite the "undeniable deficiencies" in the District's original response, Kentucky's courts have disapproved "the remedy of disclosure. " Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996). The District's initial "error cannot be remedied by committing another [namely, requiring disclosure of statutorily protected records] and thus compounding mistakes at the possible expense of due process." Id. It is for this reason that the Attorney General has, on more than one occasion, recognized that although "a 40 KAR 1:030 Section 2 response should be viewed as an opportunity to supplement, and not to supplant, [an agency's] original denial," this office will consider "those supplemental responses that correct misstatement or misunderstandings which appear in, or arise from, the letter of appeal, or which offer additional support for the agency's original denial." 98-ORD-87, note 2 (emphasis added). We do so here in the interest of arriving at the correct legal result.
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.
Distributed to:
Jon L. FleischakerRegan HuneycuttBob LovingoodJack Lackey
Footnotes
Footnotes
1 Although these provisions generally describe the scope of the superintendent's authority, they do not expressly invest the superintendent with authority to issue private reprimands.
2 Pursuant to KRS 61.880(2)(c), the Attorney General "may request additional documentation from the agency for substantiation . . . [including] a copy of the records involved but they shall not be disclosed." Although this office did not request copies of the records produced by the District for in camera inspection, the unsolicited production of the records, in this instance, confirmed the existence of three private reprimands.
3 We note that Mr. Parrino did not request charging documents.
4 Now codified as KRS 161.790(6).
5 Again, we note that the New Era did not request copies of the complaints that prompted the private reprimands or any associated documentation.