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 Hardin County School District violated the Open Records Act in denying WHAS-TV reporter Renee Murphy's May 15, 2013, request for "the investigative file into New Highland Elementary principal Mark Thomas . . . ." Specifically, Ms. Murphy requested "a copy of the complaint, witness statements, Thomas's statements, and the conclusion at the end of the investigation." We find that the district's reliance on KRS 61.878(1)(i) and (j) to deny Ms. Murphy's request was misplaced and that its position that a threatened defamation action by Mr. Thomas's attorney precludes disclosure of the requested records is legally unsupportable.
On May 15, 2013, Mr. Thomas was suspended with pay from the position of principal at New Highland Elementary School while district officials conducted an investigation into undisclosed allegations of wrongdoing. That afternoon, Ms. Murphy submitted a request for the investigative file. Her request was promptly denied on the basis of KRS 61.878(1)(i) and (j). 1 Emphasizing that the investigation into Mr. Thomas was ongoing and that no records documenting final action existed, the district advised:
Once the process regarding Mr. Thomas is complete, the district will be happy to provide any record documenting final agency action and any records generated in the course of the investigation that were adopted as the basis of final action that are not otherwise exempted under the Open Records Act.
On June 20, 2013, the district "received and acknowledged" Mr. Thomas's resignation 2 advising Ms. Murphy that "[a]t that point, the employment of Mr. Thomas was terminated" and the documents identified in her request forfeited their preliminary status. Nevertheless, the district again denied the request, explaining:
[T]he attorney for Mr. Thomas, whose name is John Frith Stewart, advised in writing yesterday that if the district releases the records . . ., Mr. Thomas will file a legal complaint against the district, asserting defamation and other causes of action.
Shortly thereafter, Ms. Murphy initiated this appeal.
In supplemental correspondence directed to this office, the district reversed its position relative to the applicability of KRS 61.878(1)(i) and (j), asserting that the disputed records retained their preliminary status. The district argued:
The investigative file is merely that, investigatory. It contains only information compiled in the course of [the district's] fact-finding inquiry against Mr. Thomas. As such, it contains only preliminary drafts, notes, preliminary recommendations, and preliminary memoranda. No final agency action was taken because of the resignation.
Anticipating the possibility that the Attorney General would reject this argument, the district asserted that Mr. Stewart's threat of litigation "justifie[d] its action." Acknowledging the importance of the Open Records Act, the district maintained that "compliance with the Act should not mean facing litigation in Kentucky circuit court." As the Open Records Act clearly contemplates, litigation is the price public agencies must occasionally pay to ensure proper enforcement of the public's right to know.
The weight of legal authority is contrary to the district's arguments and compels disclosure of the records in dispute. Resolution of the question of the applicability of KRS 61.878(1)(i) 3 and (j), 4 as well as KRS 61.878(1)(a), 5 to records relating to a public employee, under investigation by the public agency he serves, who resigns before the agency takes action is found in
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). In Palmer , at 599, the court was asked to determine if records relating to the investigation of a police officer, who was alleged to have "neglect[ed] his duty to the public by having an inappropriate relationship with another police officer while on duty," were excluded from public inspection by KRS 61.878(1)(a), (i) and (j). Like the Hardin County School District, Palmer asserted that his resignation, prior to the conclusion of the disciplinary proceedings against him, preempted final agency action and that records relating to allegations of his misconduct retained their preliminary status under KRS 61.878(1)(i) and (j). The court concluded that to "accept [t]his argument . . . defies common sense," id. at 596, reasoning:
[A] resignation from a position by an employee before the [City] Commission has reached a decision concerning possible termination is a "final action. " The effect of Palmer's resignation was to end the City's disciplinary proceedings against him. The subsequent decision of the Commission to end the hearings against Palmer constituted its "final action. " Obviously, if the City had proceeded with the disciplinary proceedings after Palmer's resignation when nothing further could be gained, since he had already terminated his own employment, the Commission would have been wasting government resources. We must assume that all the parties proceeded logically and recognized that Palmer's resignation was the final action to be taken.
Id at 597. Accordingly, the court concluded, the requested records were "not exempt from disclosure" under these exceptions. Accord 02-ORD-231 (holding that Justice Cabinet improperly withheld records relating to retired State Police Commissioner since his "departure from KSP before KSP took action was final action" and recognizing that any other holding would enable public employees and public agencies to escape scrutiny by voluntary termination of public service); see also 12-ORD-201 (resignation of director of university's arts center did not preempt university action or preclude public access to records relating to director). Under the same line of reasoning, we conclude that the records to which Ms. Murphy requested access formed the basis of the district's "final action and the records thereafter forfeited whatever protection as preliminary documents they might have once enjoyed." 12- ORD-201 (2012 WL 5398249, p. 3).
Nor, the court continued, were the requested records shielded from disclosure by KRS 61.878(1)(a) 6 as Palmer argued and the district argues here. Rejecting Palmer's claim that the records contained "information of personal, private matters" and that there was "no purpose in disclosing the information other than to quench the public's curiosity," Palmer at 597, the court held that "the public has a legitimate interest in the information sought . . . ." Id. at 598. The court observed:
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 under KRS 95.450. 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.
Id. at 599.
Although the record on appeal is devoid of any details about the allegations against Mr. Thomas, 7 the position of public trust he occupied as principal of an elementary school is analogous to that of a police office and the allegations against him "a matter of unique public interest. " The competing public and private interests implicated by disclosure of the disputed records here and in Palmer are roughly the same. There can be little doubt that Mr. Thomas would prefer that those records remain exempt under KRS 61.878(1)(a), but that preference must yield to the public's right to know whether the district "properly . . . execute[d its] statutory function" by responding to and investigating the allegations against Mr. Thomas, as well as to the public's right to know whether its public servant, in this case Mr. Thomas, was "indeed serving the public . . . ."
Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992).
The threat of legal action against the Hardin County School District for the statutorily mandated disclosure of the disputed records, though clearly unfortunate and even more clearly unwelcomed, does not constitute a legal basis for denying Ms. Murphy's request. Again, case law controls. In Beckham v. Board of Education , 8 873 S.W.2d 575 (Ky. 1994), the Kentucky Supreme Court held that a party affected by a public agency's decision to release records in response to an open records request has standing to contest the agency's decision in court. The Court focused on the language of KRS 61.882(1) granting the circuit court of the county where the agency has its principal place of business or where the record is maintained jurisdiction to enforce the Open Records Act "by injunction or other appropriate order on application of any person." Declining the invitation to construe KRS 61.882(1) as a remedy for denial of access only, the Court held that "the language used is without any such limitation" and that it would be anomalous to "disregard plain statutory language to conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right." Beckham at 578 and 579. "It would appear," the Court noted, "that the General Assembly sought to promote disclosure by devising easy means toward that end, but left the door ajar for those who seek to prevent disclosure by granting them a litigation remedy to enforce the exclusions." Id. at 578. The Supreme Court concluded that the parties affected by disclosure, "having commenced litigation prior to release of the information sought, were entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals." Id. at 579; accord 98-ORD-24; 00-ORD-5. Mr. Thomas's recourse lies in a Beckham action against the district, under authority of KRS 61.882(1), and not in the threatened defamation action.
Having decided that the Hardin County School District's reliance on KRS 61.878(1)(i) and (j) was misplaced, a position that the district originally took in responding to Ms. Murphy, we believe that the district has two options. The district may: (1) accept our decision and notify Mr. Stewart and his client that it intends to disclose the requested records to Ms. Murphy, thereby affording them the opportunity to assert a Beckham claim in circuit court pursuant to KRS 61.882(1); or (2) appeal our decision in circuit court pursuant to KRS 61.880(5)(a). If it elects the first option, and Mr. Stewart pursues the litigation option in circuit court, the district will assume the same posture as the Jefferson County Board of Education in Beckham , above. If it elects the second option, it will litigate these open records issues, de novo , against WHAS-TV in circuit court per KRS 61.882. If it elects neither option, and takes no action on our decision, that decision will have the force and effect of law after thirty days and "shall be enforceable in the circuit court" per KRS 61.880(5)(b). Under any of these scenarios, the Attorney General "shall not . . . be named as a party in any circuit court actions regarding enforcement of KRS 61.870 to 61.884, nor shall he have any duty to defend his decision in circuit court or any subsequent proceeding. " KRS 61.880(3). We see little likelihood that the Hardin County School District can avoid litigation in the circuit court. However these issues are resolved by the court, we remind the district that judicial enforcement of the public's right to know is contemplated by the Act when administrative enforcement cannot secure that right.
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:
Renee MurphyDavid T. Wilson II
Footnotes
Footnotes
1 These exceptions were misidentified as KRS 61.878(1)(g) and (h). KRS 61.878(1)(g) excludes test questions and scoring keys and is clearly inapplicable. KRS 61.878(1)(h) relates to records of agencies involved in administrative adjudication, compiled in the process of detecting and investigating statutory or regulatory violation, if disclosure of the records would harm the agency or its enforcement action. While it is possible that the district intended to invoke the latter exception, its explanation of the exceptions' application is couched exclusively in terms of "preliminary drafts, notes, preliminary recommendations, correspondence with private individuals," and "preliminary memoranda expressing opinions and recommendations."
2 June 25, 2013, letter from Hardin County School District attorney David T. Wilson, II, to Ms. Murphy.
3 KRS 61.878(1)(i) authorizes nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]"
4 KRS 61.878(1)(j) authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
5 KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
6 KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
7 A May 23, 2013, article in the News-Enterprise indicates that district officials stated that "the allegations against Thomas didn't involve students," that they did not necessitate a criminal investigation, and that "no other staff members are being investigated in connection with the allegations." It also quotes Mr. Thomas as having said that the allegations against him were "unfounded and untrue" and that he was "happily married."
8 Beckham , above, involved the unsuccessful efforts of a number of school employees to block the school district's decision to disclose disciplinary records after the district refused to make a commitment to the employees not to disclose the records on privacy grounds.