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 Floyd County Board of Education violated the Open Records Act in the disposition of attorney Earl M. McGuire's May 21, 2012, request for copies of records relating to his client, Steve Romans, a teacher employed by the Floyd County Schools, who had been subjected to disciplinary action the previous year. For the reasons that follow, we find that the Board violated the Act.
In his May 21 request to Superintendent Henry L. Webb, 1 Mr. McGuire stated: "Mr. Romans is specifically demanding copies of any written statements filled out concerning the allegations against him, whether by students or staff. " The Board of Education's attorney, Michael J. Schmitt, responded in a letter dated May 29, 2012: 2
Please be advised that any written statements obtained from students represent preliminary drafts, notes, correspondence with private individuals which are otherwise expected [ sic ] from disclosure by KRS 61.878(1)(i) and are preliminary materials which were part of the investigation and which are exempt by [ sic ] disclosure by KRS 61.878(1)(j). These materials are also exempt from disclosure pursuant to KRS 61.878(1)(h) as records involved in an administrative adjudication.
?
Final action of Superintendent Webb ? was based solely upon Mr. Romans' version of the incident as set out in his own hand written statement, his interview with District Investigator Ted George and his personal interview with Mr. Webb. The statements submitted by the two (2) students were not considered trust worthy and were not afforded any evidentiary value.
Please see OAG 88-38 and 10-ORD-075. In short, the statements from the students were preliminary in nature and were not adopted by or relied upon by Superintendent Webb as a basis for his final action as set out in the letter to Mr. Romans of December 12th, 2011. As such they are not subject to disclosure under the Open Records Act.
After a second round of correspondence, in which the Board of Education's legal position was disputed by Mr. McGuire and reasserted by Mr. Schmitt, this appeal was initiated on August 10, 2012.
Mr. McGuire states, in relevant part, the following in his August 10 letter of appeal:
The FCBOE has repeatedly refused to turn over Mr. Romans['] personnel file, reports, and written statements and/or complaints made against him by students, staff, or school officials in their official capacities. ?
The FCBOE contends the requested information is exempt from disclosure under KRS 61.878(1)(i); (1)(j); (1)(h); and OAG 88-38. However, the FCBOE fails to point out that under KRS 61.878(3) no exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee....to inspect and to copy and [ sic ] record including preliminary and other supporting documentation that relates to him. Further, Mr. Romans makes no attempt to seek information on any preliminary drafts or notes prepared by FCBOE.
(Emphasis in original.)
Mr. Schmitt responded on behalf of the Floyd County Board of Education on August 22, 2012, explaining that Mr. Romans was provided with a copy of his personnel file in response to a previous request, and that what is presently at issue is only the request for copies of written statements made against Mr. Romans. With regard to those statements, he reiterates the arguments made in the Board's initial denial and adds that "it is important to note that no written statements were submitted by students or anyone else as an initiating complain[t] to spur the investigation of, and action taken against, Mr.Romans." He presents no argument regarding the application of KRS 61.878(3).
Subsection (3) of KRS 61.878 provides, in relevant part:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee ? to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, ? preliminary and other supporting documentation. A public agency employee ? shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
Teachers in public schools are "public agency employees" within the meaning of this subsection. 03-ORD-163; 03-ORD-068; 93-ORD-74. The only exception to a public agency employee's right of access to a record "that relates to him" is when it relates to an ongoing criminal or administrative investigation. The Floyd County Board of Education has not alleged the existence of an ongoing criminal or administrative investigation; 3 on the contrary, it was the completed investigation that resulted in the disciplinary transfer imposed upon Mr. Romans in December 2011.
Since KRS 61.878(3) is clearly applicable in this instance, it would be a moot issue to decide whether the records requested by Mr. McGuire fall within the cited exemptions under KRS 61.878(1)(h) ("[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication" ); KRS 61.878(1)(i) ("[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" ); or KRS 61.878(1)(j) ("[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended"). We find that the Board of Education improperly invoked these exemptions because Mr. McGuire had requested on behalf of his client, a public agency employee, records that related to him. 4
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.
Distribution:
Earl M. McGuire, Esq.Michael J. Schmitt, Esq.Henry L. Webb, Superintendent
Footnotes
Footnotes
1 Mr. McGuire's letter was a follow-up to a more generic request by Mr. Romans on May 8, 2012.
2 The record does not reflect when Mr. McGuire's request was received, so we cannot determine the timeliness of Mr. Schmitt's response.
3 The only pending administrative matter appears to be charges brought against Mr. Romans before the Education Professional Standards Board (EPSB). According to Mr. McGuire's May 21, 2012, letter to Superintendent Webb, the EPSB's counsel advised Mr. Romans that he was entitled to obtain the written statements in question from the Floyd County Board of Education.
4 Because it has not been raised in this matter, we do not address the possible applicability of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, or its state counterpart, KRS 160.700 et seq.