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 Bowling Green Independent School District violated the Open Records Act in its disposition of Daily News Assistant City Editor Deborah Highland's April 24, 2015, request to inspect the personnel file of a teacher. For the reasons that follow, we find no substantive violation of the Act.
Ms. Highland's request, submitted by e-mail, sought access to "the personnel file of Jonathan Carrier and any memos or emails to either [ sic ] Carrier, his principals (past and present) and central office from parents, students, former students or other educators alleging emotional abuse, menacing behavior, physical abuse or any other inappropriate conduct on the part of Mr. Carrier directed at his pupils or colleagues." In an undated response, Leslie McCoy of Bowling Green Independent Schools indicated that redactions had been made and certain documents were not being provided "as disclosure of this information would constitute a clearly unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a). Although the entire list of withheld documents is not legible in the copy provided to this office, the only items at issue in this appeal appear to be those identified as "Evaluations and growth plans" 1 and "Any disciplinary record not subject to disclosure, should same exist."
Ms. Highland's undated appeal was received in this office on May 18, 2015. On May 27, 2015, attorney Michael A. Owsley responded to the appeal on behalf of the school district. He reiterated the district's reliance upon KRS 61.878(1)(a) as to the performance evaluations, but based the withholding of nonpublic disciplinary records upon KRS 61.878(1)(l) instead, inasmuch as Kentucky law allows school superintendents to impose private reprimands.
KRS 61.878(1)(l) exempts from public disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 161.790(10) provides, in pertinent part, that in teacher disciplinary matters:
As an alternative to termination of a teacher's contract, the superintendent upon notifying the board and providing written notification to the teacher of the charge may impose other sanctions, including suspension without pay, public reprimand, or private reprimand.
In 08-ORD-128 (copy attached) , we ruled that private reprimands under this subsection are shielded from public disclosure by operation of KRS 61.878(1)(l). We adopt the reasoning in 08-ORD-128 as the basis for our decision on this matter. Thus, if any private reprimands exist in Mr. Carrier's personnel file, they were lawfully withheld by the district.
While we find KRS 61.878(1)(l) and KRS 161.790(10) dispositive on the merits of this issue, we must conclude that the district's initial response to the request was procedurally deficient. KRS 61.880(1) requires an agency denying a request for records to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Ms. McCoy's response cited only KRS 61.878(1)(a). Since the district did not originally cite KRS 61.878(1)(l) or explain its application to private reprimands, we find that a procedural violation occurred.
Turning to the performance evaluations, it is well established that such documents "can contain a great deal of personal information, and should not be subject to disclosure without the most pressing of public needs." Cape Publications v. City of Louisville, 191 S.W.3d 10, 13 (Ky. App. 2006). While Ms. Highland has argued that release of Mr. Carrier's evaluations "may present a clearer picture of Carrier's classroom behavior and how the district has responded, " she has articulated no overriding public interest that would defeat the recognized privacy interests in the evaluations. For this conclusion, we adopt the general reasoning contained in 13-ORD-063 (copy attached) and additionally note that the privacy of teachers' performance evaluations has been specifically upheld in prior decisions of this office. See, e.g. , 03-ORD-141; 92-ORD-1145.
Therefore, we find no substantive violation of the Open Records Act in the Bowling Green Independent School District's denial of access to teacher evaluations and private reprimands. As stated above, we find a procedural violation arising from the district's failure to cite KRS 61.878(1)(l) and explain its application.
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.
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