Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Community and Technical College System ("KCTCS") violated the Open Records Act in the disposition of Esther L. Bays' February 5, 2009, request for copies of records connected with a grievance she filed against Maysville Community and Technical College ("MCTC"). For the reasons that follow, we find that KCTCS's actions were in compliance with the Act but may be partially inconsistent with the federal Family Educational Rights and Privacy Act of 1974 ("FERPA").
In her February 5 request, Ms. Bays, a former student at the Maysville campus, requested copies of numerous items, including the following requests which were denied by KCTCS:
. A blank copy of all written examinations and the final examination administered to the Nursing 203 class during the fall 2008 semester.
. Notes obtained from interviews conducted by Dr. Michael Krause of MCTC personnel regarding my Student Discrimination Grievance.
Regarding the examinations, J. Campbell Cantrill III, KCTCS General Counsel and Records Custodian, replied on February 13, 2009: 1
This portion of your request is denied pursuant to KRS 61.878(1)(g), which exempts "(t)est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again."
As to the interview notes of Dr. Krause, Mr. Cantrill replied:
This portion of your request is denied pursuant to KRS 61.878(1)(i), which exempts "(p)reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. "
After some further correspondence with Mr. Cantrill, Ms. Bays initiated the present appeal on February 23, 2009.
In her appeal, Ms. Bays contends that "[s]tatements made by instructors throughout the semester indicated that they wrote examination questions and compiled them prior to each exam; which is a clear indication that they had not given those specific exams in the past." Therefore, she asserts that the exemption from the Open Records Act in KRS 61.878(1)(g) does not apply because the "academic examination ? is [not] to be given again."
In KCTCS' March 13, 2009, response to the appeal, Mr. Cantrill states as follows:
I consulted with the faculty at Maysville Community and Technical College regarding this issue, and according to them, the questions on the test are part of a "bank" of questions that are used repeatedly. Ms. Bays' appeal appears to turn on the notion that the test itself will not be used again, but the statutory language exempts the test questions, not the test in its entirety. So while it may be true that the exact test Ms. Bays took in Nursing 203 may not be used again, the questions themselves are exempt under KRS 61.878(1)(g) in that they may be used again.
KCTCS' position finds support in OAG 87-56, in which we noted that "it is the questions ? asked ? which are excluded from public inspection" under this subsection. If some of the same test questions are expected to be used again when the examination is given in the future, because they have become part of a "bank" of reusable questions, then the exemption in KRS 61.878(1)(g) applies. To the extent that the parties may have a factual dispute on this issue, we cannot resolve it and must therefore accept the statement of KCTCS as to its academic practices. KCTCS accordingly did not violate the Open Records Act by withholding the examinations.
With regard to the interview notes, Ms. Bays argues, in most pertinent part, as follows:
The records requested were interview notes from interviews conducted with public agency employees. These interview notes constitute neither a preliminary draft, nor are these documents notes that would reflect an unfinished work of the investigation performed by Dr. Michael Krause in which an opinion is expressed by Dr. Krause. I am simply seeking to request an account of the interviews for the purpose of evaluating the veracity of the responses of the public employees interviewed; i.e., the questions asked of the MCTC employees and their responses.
? If preliminary opinions were contained within the interview notes those opinions could be redacted from the released records.
?
The resulting document was not the final action of the public agency, as an appeal remains in place.
?
With my being the central topic of the interview my right to introduce evidence that would contradict statements made during the interviews regarding my complaint during an appeals hearing would deprive me of due process rights.
Mr. Cantrill, on behalf of KCTCS, responds:
Dr. Michael Krause is System Director of Enrollment Management, whose primary location and job responsibilities are in the Chancellor's Office at the KCTCS System Office. His role in the Student Discrimination Grievance Procedure for Ms. Bays' grievance was to serve as the college president's designee in conducting "a preliminary investigation" (see number 1 in [KCTCS Administrative Policy and Procedure 6.6, the Student Discrimination Grievance Procedure]). The entirety of the investigation is preliminary. The policy then states that the involved parties will work together to negotiate a solution. In this instance, Dr. Krause produced a recommendation to the college president, Dr. Ed Story, based on the interviews he conducted and a review of provided materials. Dr. Story is the ultimate decision maker at this stage of the appeal. Dr. Krause had no authority to take final agency action. He does not work at the college and has no authority over decisions at the college. Under these circumstances, Dr. Krause's report could have been exempt from release pursuant to KRS 61.878(1)(j) as a preliminary memorand[um] in which opinions were expressed. ? However, the report was provided to Ms. Bays as part of Dr. Story's correspondence attempting to resolve the grievance under Administrative Policy and Procedure 6.6. Ms. Bays even notes in ? her appeal "The resulting document was not the final action of the agency, as an appeal remains in place."
The interview notes themselves, however, are a different matter. The notes were taken as a memory aid to Dr. Krause during eight hours of interviews that took place on three different days. The notes were not incorporated into the report, but were part of the fact-finding that informed the report. The notes were not adopted by Dr. Story as part of his action. They were memory aids created during the assessment of the situation.
Ms. Bays states in her appeal regarding the notes that "the questions asked of these employees ? are potentially an important evidentiary element of an appeal." The notes are not "evidentiary" in the appeal Ms. Bays should be filing in accordance with KCTCS policies and procedures. Ms. Bays will be afforded appropriate due process should she continue with her appeal. Her appeal is of the events giving rise to her complaints, not of the process of attempted resolution under Policy 6.6; therefore Dr. Krause's notes will not be part of the "evidence" during that hearing. The handwritten notes made by Dr. Krause are preliminary and therefore exempt, and have no further purpose in the appeals process.
In those published cases and decisions of the Attorney General which refer to documents as losing their "preliminary" characterization, the exempt status is lost only because the document has been adopted as the basis of final agency action and made a part of that final action. See, e.g.,
Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky.App. 1983);
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky.App. 1982); 93-ORD-9; 97-ORD-168; 08-ORD-230. Here, since there is still an internal appeal pending with KCTCS, there has been no final agency action on Ms. Bays' complaint. Accordingly, Dr. Krause's interview notes cannot have lost their preliminary status. 09-ORD-041.
Furthermore, based on Mr. Cantrill's description of the informal-grievance and formal-appeal processes, there is little or no probability that those notes will ever be viewed by the final decisionmaker, and therefore they are extremely unlikely to be adopted as the basis of any final action in the future. As this office has observed:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. ? Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
OAG 78-626, p. 2. The evident purpose of Dr. Krause's notes was to aid his memory in preparing a report of his preliminary investigation for the college president during the informal attempt to resolve a grievance. Cf. 97-ORD-183, p. 4. While we are not in possession of a full description of the appeal hearing process, we presume that evidence will be presented de novo on the discrimination allegations and the conduct of the informal grievance process will not be at issue. We additionally note that due process arguments are not within the purview of an open records appeal. 08-ORD-142.
Although we find that the notes taken by Dr. Krause are exempt from disclosure under the Kentucky Open Records Act, KCTCS should consider another law that is potentially applicable. The Family Educational Rights and Privacy Act (FERPA) requires a postsecondary educational institution to disclose education records to a student to whom they relate. 20 U.S.C. § 1232g(d). While we express no opinion as to whether Dr. Krause's notes constitute "education records" of Ms. Bays within the meaning of 20 U.S.C. § 1232g(a)(4)(A), we remind KCTCS that a failure to comply with FERPA could jeopardize any federal funding received by MCTC. 20 U.S.C. § 1232g(a)(1)(A).
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 proceedings.
Distributed to:
Esther L. BaysJ. Campbell Cantrill III, Esq.
Footnotes
Footnotes
1 Assuming there was no responsive communication from KCTCS prior to February 13, 2009, we note that the failure to respond within three (3) days to a request admittedly received on February 5 was a procedural violation of KRS 61.880(1).