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 Montgomery County Board of Education failed to meet its statutorily assigned burden of proof in denying Mt. Sterling Advocate Managing Editor Jamie Vinson's January 16, 2015, request for access to, and copies of, two documents "delivered to the Board [on] January 10 by Shannon White and Cindy Kincaid" and whether the Board thereafter mischaracterized the open records dispute as "resolved" because Ms. Vinson "received the [documents] from another source." The answer to both questions is "yes."
In an undated response, Chief Administrative Officer Jacqui Johnston advised Ms. Vinson:
Cindy Kincaid had notified you that your request for the letters that were delivered to the Board of Education January 10 by Shannon White and Cindy Kincaid were not subject to Open Records.
In response to Ms. Vinson's request "to know which KRS statutes the denial was based on," Ms. Johnston attached an unsigned letter dated January 20, 2015, identifying "the reasons for denying the 2 requests." The attached letter read, in part:
The Board of Education is denying your request as the letter is not a "public record" pursuant to the Open Records law.
In the event the letter is considered a "public record, " the letter contains information of a personal nature, and public disclosure of this information would constitute an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a). Also, the letter constitutes preliminary correspondence with individuals, and therefore is not subject to Open Records requests pursuant to KRS 61.878(i) [sic].
Furthermore, the record is exempt from disclosure pursuant to KRS 61.878(1)(h), as the Board is in the process of a formal investigation of Dr. Josh Powell and information contained in the letter may pertain to an administrative adjudication.
The requested letter contains information that is false and potentially defamatory. If the contents of this letter are published, the individuals mentioned may have a cause of action for defamation.
For these reasons the Board denied Ms. Vinson's request on the basis of KRS 61.878(1)(a), (h), and (i).
On appeal, Ms. Vinson describes the "two separate documents" to which she requested access as:
Letters from suspended Montgomery County Board Superintendent Josh Powell -- one is addressed specifically to the Board of Education in which Powell complains about certain actions related to his suspension as superintendent. The other is addressed to Kentucky Education Commissioner Terry Holliday in which Powell complains about certain actions of the school board.
Ms. Vinson questions the application of the referenced exceptions to the letters, asserting that because Josh Powell is a public official, and his letters were directed to another public official and a public agency, the Board erroneously invoked KRS 61.878(1)(a) . Additionally, she questions the Board's reliance on KRS 61.878(1)(h) and (i), acknowledging that although there is a pending investigation involving Josh Powell, "no law enforcement records are involved."
In the absence of proof to support the Board's claim that the requested letters are exempt from public inspection, we find that it failed to meet its statutorily assigned burden in denying Ms. Vinson's request. 1 The record on appeal does not support the Montgomery County Board of Education's reliance on KRS 61.878(1)(a) and (i). They are, as Ms. Vinson observes, letters prepared by a public official and submitted to another public official and a public agency. See, e.g., 08-ORD-140 (recognizing that "communications exchanged by public officials on a matter pertaining to public business . . . do not enjoy protection under KRS 61.878(1)(a) as records containing personal information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy or KRS 61.878(1)(i) as correspondence with private individuals other than correspondence intended to give notice of final action of a public agency" ); see also 09-ORD-180. Although we have not reviewed the letters, the record on appeal reflects that Ms. Vinson obtained them from another source. She indicates that they consist of Josh Powell's complaints about his suspension and about the Board. The Board does not dispute her description of the contents of the letters. This is "the type of information about which the public . . . has a legitimate interest" even if its disclosure might cause "personal embarrassment or humiliation." Palmer v. Driggers, 60 S.W.3d 591, 598 (Ky. App. 2001); see also KRS 61.871 (recognizing that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others"). Absent proof of the existence of a strongly substantiated privacy interest that outweighs the public's right to know, or of "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality," 2 we find that the Board failed to meet its statutory burden in denying Ms. Vinson's request on the basis of KRS 61.878(1)(a) and KRS 61.878(1)(i).
We also find that the Board failed to present sufficient proof that the letters are shielded from disclosure by KRS 61.878(1)(h). That exception authorizes nondisclosure of:
Records 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.
Contrary to Ms. Vinson's belief, KRS 61.878(1)(h) applies to both "law enforcement records" and records of "agencies involved in administrative adjudication" but only if the agency invoking the exception presents proof that "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)(h). The Board's reference to a formal investigation of Josh Powell, and its assertion that "information contained in the letter[s] may pertain to an administrative adjudication, " does not meet its burden of proof in sustaining the denial of Ms. Vinson's request.
The fact that Ms. Vinson "received the letters from another source" does not alter our analysis. The Attorney General has long recognized that "this rationale does not support nondisclosure and is not a legally recognized basis for denying an open records request." 99-ORD-121, p. 10. In 00-ORD-16, this office determined that an agency erroneously withheld records already in the possession of the requester, reasoning that "it is only through full disclosure of . . . records documenting [the requester's and the agency's] written exchange can he satisfy himself that the record is complete." More recently, we rejected the argument advanced by a public agency that "the fact that [the requester] obtained a copy of [the record sought from a source other than the agency], does not relieve the [agency] of its duty to provide him with a copy of any of those records also in the possession of the agency." 09-ORD-199, p. 3. Accordingly, we find that the Montgomery County Board of Education mischaracterized Ms. Vinson's request as "resolved." The Board remains obligated to furnish her with copies of the letters, and its duties under the Open Records Act will not be fully discharged until it has done so.
Either party may appeal this decision 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.
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