Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jefferson County Public Schools violated the Open Records Act in not providing responsive records regarding the suspension and notice of intent to dismiss a teacher. We find that JCPS violated KRS 61.880(1) by not citing an exception to the Act for withholding records and adequately explaining why the records were being withheld.
On September 21, 2016, Ms. Toni Konz, a reporter for WDRB, sent an email to Amanda Herzog, Open Records Coordinator, Jefferson County Public Schools. Ms. Konz requested:
Please send me a copy of any letters, complaints, allegations or investigations, as well as any letters of commendation involving Kristi Cannon, who most recently worked as a teacher at Carrithers School. I am also looking for Ms. Cannon's date of hire with the district and list of any jobs she has held since her date of hire.
Ms. Herzog timely responded to Ms. Konz by email on September 27, 2016, stating that "[t]he responsive documents are attached." JCPS provided a copy of an August 29, 2016, letter, temporarily reassigning Ms. Cannon from her duties at Carrithers Middle School. Ms. Konz questioned Ms. Herzog again on September 27, 2016, via email, asking if there were any complaints or investigations in Ms. Cannon's file that had not been provided. Ms. Herzog responded that same day, stating that the responsive documents were attached. However, the attachments did not include complaints, investigations, suspensions, or termination letters.
On October 7, 2016, Ms. Konz sent an Open Records request to Kevin Brown, Kentucky Department of Education, inquiring if he could send her Ms. Cannon's request for tribunal letter. Todd Allen, Assistant General Counsel, Office of Legal, Legislative and Communication Services, responded by providing two letters from Don Meade, attorney, to the Kentucky Department of Education and the Superintendent, JCPS. The first letter, September 8, 2016, stated that the firm of Priddy, Cutler, Naake & Meade represented Ms. Cannon with respect to the September 6, 2016, charges levied against her by JCPS and the imposition of a ten-day disciplinary suspension, with recommendation for discharge. The letter also stated that KDE and JCPS were being notified that Ms. Cannon intended to answer the charges against her and requested a tribunal be appointed to conduct an administrative hearing. The second letter, September 22, 2016, addressed a "notice of intent to terminate" dated September 8, 2016, and also gave notice to KDE and JCPS of Ms. Cannon's intent to answer the charges and requested that a tribunal be appointed to conduct an administrative hearing. In responding to Ms. Konz, Mr. Allen stated:
The charging documents referenced in the attached responsive documents constitute preliminary correspondence to a private individual that is not intended to give notice of final action of a public agency. Pursuant to KRS 161.790(3), the action to terminate a teacher's contract is not final if the teacher, within 10 days of receiving notice of intent to terminate, notifies the commissioner of education of his/her intent to answer the charges. Furthermore, the charging documents referenced in the attached responsive documents are the records of an agency involved in administrative adjudication. To make the documents publicly available would constitute premature release of records to be used in an administrative action.
On October 7, 2016, Ms. Konz, contacted Jennifer Brislin, JCPS, via email, who confirmed that Ms. Herzog had provided all the responsive records that were available. Ms. Konz then appealed JCPS' responses, stating "[a]s of October 10, 2016, WDRB has still not obtained confirmation about Ms. Cannon's termination from JCPS, nor any documents that were originally requested on Sept. 21, 2016 (other than the Aug. 29 reassignment letter.)"
Ms. Herzog responded to the appeal on October 24, 2016, stating, in pertinent part, that "[w]hile a termination letter was sent to Ms. Cannon on or about September 20, 2016, these letters are not considered official, and are not therefore included in the personnel file. " Ms. Herzog also stated that she interpreted Ms. Konz's request to mean "official" records, not every communication where an individual may have voiced some form of disagreement. She explained that the termination letter would not have been "official" until the letter has been sent to the employee and the personnel action completed in JCPS' electronic system. Ms. Herzog reiterated that all responsive documents in Ms. Cannon's personnel file had been sent to Ms. Konz.
Final Agency Action
The record on appeal reflects that Ms. Cannon appealed her suspension and termination pursuant to KRS 161.790. The fact that Ms. Cannon appealed the suspension and termination is relevant to the determination of whether JCPS violated the Open Records Act. In 99-ORD-164, this office addressed a nearly identical appeal where the Franklin County School System had refused to disclose copies of termination letters and all documents related to disciplinary action on charges filed by the Franklin County Schools Superintendent against two teachers. In that matter, the teachers had exercised their right of appeal under KRS 161.790(3) and their appeal was then pending before the tribunal called for by that statute. In explaining the tribunal appeal process in that decision, John C. Fogle, III, attorney on behalf of Franklin County School System stated:
A Superintendent is authorized to take disciplinary action under KRS 161.790 and such becomes final unless an affected teacher furnishes notice of intent to answer disciplinary charges. See KRS 161.790(3). With respect to the charging documentation you request, the affected individuals have exercised the right of appeal described under KRS 161.790(9). Accordingly, while the administrative matter is pending before the tribunal called for under KRS 161.790, the action of the Superintendent is non-final and is subject to review through the tribunal process. See OAG 91-198. While it is true this Opinion dealt with the situation in which charging documents were subject to disclosure, the affected employee had resigned from his certified position with the School District, by definition making the charges final.
99-ORD-164, p. 1, 2.
Ms. Cannon's appeal is likewise at that same preliminary stage where it is pending before a tribunal. As we stated in 99-ORD-164:
Thus, at the present stage of the disciplinary proceedings, there has been no final agency action. Until final action has been taken on the charges, the termination letters and all documents related to disciplinary action maintain their preliminary status, and may be properly withheld from disclosure under KRS 61.878(1)(i) and (j). Once final action has been taken in the disciplinary matters, unless some other exception to public inspection applies, the school system is obligated to disclose to Ms. Allen records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action. 95-ORD-47; OAG 91-198.
99-ORD-164, p. 4.
Violation of KRS 61.880(1)
Ms. Konz's initial request asked for "any letters, complaints, allegations or investigations. . . involving Kristi Cannon. . ." From the context of Ms. Konz's communications with JCPS it is clear that her request encompassed the letter of suspension and the notice of intent to terminate. Ms. Herzog, as Open Records Custodian for JCPS, did not cite to any specific exception under KRS 61.878(1) as a reason for withholding the responsive records. Ms. Herzog's response to the appeal stated:
While a termination letter was sent to Ms. Cannon on or about September 20, 2016, these letters are not considered official, and are therefore not included in the personnel file until they are sent to the employee and the personnel action has been completed in JCPS' electronic system. It is possible for an employee to receive a termination letter prior to its inclusion in their personnel file because the personnel action has not been completed in JCPS' electronic system. At the time of Ms. Konz's request, the termination letter was not in Ms. Cannon's file which explains why Ms. Konz did not receive this unofficial termination letter on September 27, 2016, the date she received the responsive records.
In analyzing the degree of specificity required in framing an open records request, Kentucky's Supreme Court has recognized that "[a] citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure. " Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008) citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Such requests, the Court continued, "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." Id. The Court determined that a request satisfied the standard found at KRS 61.872(2) if it was "adequate for a reasonable person to ascertain [its] nature and scope . . . ." Id. at 665. In this instance, JCPS applied an overly narrow interpretation of the records being requested. Ms. Konz had no way of knowing that JCPS would interpret her request as being only for records that are included in JCPS' electronic system. Ms. Konz's request clearly encompassed the records regarding Ms. Cannon's suspension and the notice of intent to terminate that Ms. Herzog admits was mailed on September 20, 2016.
Public agencies have the burden of proof under KRS 61.880(2)(c) in upholding a denial to release records, and KRS 61.880(1) requires that an agency "response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. " This office concludes that JCPS violated KRS 61.880(1) in failing to cite the specific exception for withholding the records and explaining how that exception applies. Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. That being said, rather than compound the violation committed by JCPS in failing to explain that the suspension and notice to terminate were preliminary records withheld under KRS 61.878(1)(i) and (j), we find that those records, pursuant to our holding in 99-ORD-164, remain preliminary records, under KRS 61.878(1)(i) and (j), that need not be disclosed until there is final agency action. Once final action has been taken in the disciplinary matters, unless some other exception to public inspection applies, JCPS is obligated to disclose to Ms. Konz records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action. 99-ORD-164.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.