Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Christian County Board of Education ("Board") violated the Open Records Act in its denial of Kentucky New Era staff writer Samuel Morgen's April 17, 2017, request for "all documentation of any complaints or grievances against Claudell Robertson and all documentation relating to the administrative leave and suspension of Mr. Robertson." For the reasons that follow, we find no substantive violation of the Act.
Claudell Robertson, an assistant principal in the Christian County Public Schools, was placed on paid administrative leave on January 30, 2017, and since March 31, 2017, has been suspended from employment without pay pending final action on disciplinary charges under KRS 161.790(3). 1 Pursuant to KRS 161.790(4), Mr. Robertson is scheduled to appear at a closed hearing before a three-member tribunal, at which he will contest the charges against him. On April 19, 2017, Superintendent Mary Ann Gemmill responded to Mr. Morgen that "there are no documents to release in addition to the documents provided to you with my letter to you dated March 31, 2017." 2 She further stated:
The items you have requested are exempt from disclosure under KRS 61.878(1)(a), (i), (j), and/or (k). All of the information related to the recent administrative leave and suspension of Mr. Robertson are [ sic ] exempt from disclosure as being preliminary in nature, and the related responsive items are further exempt from disclosure because those items contain information the disclosure of which would constitute an unwarranted invasion of Mr. Robertson's and other persons' legitimate privacy interests. All of the items responsive to your general requests concerning complaints and grievances against Mr. Robertson are exempted from disclosure as being either preliminary in nature or the disclosure of which would constitute an unwarranted invasion of Mr. Robertson or other persons' legitimate privacy interests. Likewise, a significant portion of the items that would be responsive to your requests qualify as educational records of students, which are subject to the Family Education Right to Privacy Act and its implementing regulations ("FERPA"). FERPA prohibits the disclosure of educational records under these circumstances.
Kentucky New Era Publisher-Editor Taylor Hayes initiated an appeal, arguing in part that the Board had failed "to give any explanation for its contention that all of the requested records relating to its suspension of Mr. Robertson are 'preliminary in nature.'" Mr. Hayes' appeal, dated April 26, 2017, was received in this office on May 8, 2017.
We decline to address the applicability of KRS 61.878(1)(a) and (k) because we find the "preliminary records" exceptions under KRS 61.878(1)(i) and (j) to be dispositive. KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. ( See 10-ORD-065 and decisions cited therein.)
"[P]iecemeal disclosure along the path of the decision-making process is not mandatory."
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Mr. Hayes argues that "the decision to place Mr. Robertson on an unpaid suspension for an unspecified amount of time and for unspecified reasons" caused certain records to lose their preliminary character. It is true that records which are adopted as the basis of final agency action cease to be preliminary under KRS 61.878(1)(i) and (j) ( see
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)); however, "[n]ot every agency action is final action. " 14-ORD-234.
"[D]isclosure of records pertaining to allegations of public employee misconduct or discipline is contingent on the finality of any investigation and, if applicable, resulting disciplinary proceedings." 16-ORD-231. In particular, we held in 99-ORD-164 that during the pendency of a disciplinary matter before a tribunal pursuant to KRS 161.790, agency action is not final. Accord , 16-ORD-231; 16-ORD-238. We attach a copy of 99-ORD-164 and adopt its reasoning in support of our decision on this point. 3
KRS 61.880(1) requires that an agency response denying inspection of records give "a brief explanation of how the [cited] exception applies to the record[s] withheld." Since Superintendent Gemmill did not expressly state the fact that no final agency action had occurred, so as to explain the applicability of the preliminary exceptions, we find that the Board committed a procedural violation of KRS 61.880(1). 4 Substantively, however, we find no violation of the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 We derive this information, in part, from a copy of the disputed records submitted to this office by the Board, which we deem to have been provided under the conditions of KRS 61.880(2)(c).
2 In a previous request dated March 27, 2017, Mr. Morgen had asked for Mr. Robertson's personnel file and correspondence of administrators and Board members relating to him.
3 We distinguish 98-ORD-117, cited by Mr. Hayes, by the fact that in that appeal the tribunal had already taken its final action.
4 This procedural violation may be somewhat mitigated by the fact that the Kentucky New Era does not appear to be under any false impression as to the current status of Mr. Robertson's disciplinary process. Although Mr. Hayes' letter of appeal uses the phrases "agency action" and "disciplinary action" in referring to Mr. Robertson's provisional suspension, he refrains from characterizing it as a "final agency action."