Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Somerset Independent Schools ("School District" ) violated the Open Records Act in its disposition of Carla Slavey's open records request for records relating to complaints filed against a school employee and investigative records regarding that employee. For the reasons stated below, we find that the School District committed a procedural error, but corrected that error on appeal and did not substantively violate the Act in its response to the request.
By letter dated January 23, 2018, Carla Slavey, reporter for The Commonwealth Journal , sent a request to the School District for "1) any documents in connection with complaints filed against school employee Steve Wallace since July 1, 2017, and 2) any documents pertaining to any investigations concerning Steve Wallace, including documentation of any conclusions or disciplinary actions taken by the school district as a result of an investigation." The School District responded on January 24, 2018, claiming that the requested records were "exempt pursuant to KRS 61.878(1)(a), (i), (k), and (l)." Ms. Slavey ("Appellant") then appealed that response to this Office, noting that the response did not comply with KRS 61.880(1) which requires, in pertinent part, that "[a]n 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. "
Winter Huff, attorney, responded to the appeal on behalf of the School District by letter dated February 26, 2018. Ms. Huff explained that the employee referred to in Appellant's request was, at the time the open records request was received, the subject of an ongoing investigation of student complaints and that the School District "was unable to corroborate or substantiate the complaints." Ms. Huff acknowledged that the initial response to Appellant did not include a brief explanation of how the exceptions applied to the records withheld, as required by KRS 61.880(1). Ms. Huff further explained that the School District had "relayed the complaints to local law enforcement, and became aware that the Department for Community Based Services was also investigating the employee." The employee was suspended with pay during the investigation. On February 9, 2018, the Department for Community Based Services ("DCBS") notified the School District that the employee could be returned to regular employment status and "the matter has concluded without any disciplinary action and without conclusion of any type of misconduct. " Ms. Huff's response provided a brief explanation for each exemption relied upon by the School District in denying Appellant's request for records.
Ms. Huff first cited to KRS 61.878(1)(a) 1 for withholding the requested records. She stated that the complaints were made by minor students and the nature of the allegations were such that public disclosure would constitute a clearly unwarranted invasion of privacy of the students and of the employee. Secondly, Ms. Huff stated that KRS 61.878(1)(i) 2 permitted the School District to withhold the records as preliminary because "at the time of the receipt of the open records request, all investigations were pending and no final action had been taken." Next, Ms. Huff cited to KRS 61.878(1)(k) 3 as another basis for withholding the student complaints "[b]ecause those complaints are student records, disclosure is prohibited under the Family Educational Rights and Privacy Act. See 20 USC 1232g." Finally, Ms. Huff explained that KRS 61.878(1)(l) 4 exempted the requested records "because the pending investigation involved minor students and allegations of a personal and private nature, disclosure was properly exempted under the Kentucky Family Educational Rights and Privacy Act [.]"
On March 7, 2018, this Office requested to review the records responsive to Appellant's request in camera pursuant to KRS 61.880(2)(c). 5 The request recognized the School District's concerns about providing the records for the review, especially regarding the Family Educational Rights and Privacy Act ("FERPA") 6 and Kentucky Family Educational Rights and Privacy Act 7 ("KFERPA") restrictions. We allowed the School District to provide redacted copies of the records for our review, but only to protect names and personally identifiable information of students. The School District subsequently provided the responsive records for our review, with redactions for personal identification of students.
KRS 61.878(1)(i) . During the pendency of the investigation, the employee was suspended with pay. As of February 9, 2018, the representative of DCBS advised the School District that the employee could be returned to regular employment status. The investigation was concluded without any resulting disciplinary action and without conclusion of any type of misconduct.
This Office has previously addressed the applicability of KRS 61.878(1)(i) and (j) 8 in the context of an ongoing investigation where the agency had not taken final action. In 17-ORD-108, under similar facts where a school employee was suspended during investigation of a complaint, this Office determined that 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.)
"[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 find no violation by the School District in its denial of records responsive to Appellant's request as an investigation of charges against an employee was ongoing at the time of that request. We concur with Appellant that the School District committed a procedural violation of KRS 61.800(1) by failing to provide a brief explanation of how the exception applies to the record withheld.
In contrast to the facts in 17-ORD-108, the investigation at issue in this matter was completed prior to receipt of the appeal by this Office and we are thus compelled, for reasons of administrative efficiency, to review the arguments made on behalf of the School District, lest Appellant file a new request now that the investigation is over and the agency has taken final action.
Nondisclosure under FERPA and KFERPA . Both FERPA, and the implementing regulations codified at 34 C.F.R. § 99 et seq. , are incorporated into the Open Records Act by the express language of KERS 61.878(1)(k). In conjunction with its state counterpart, KFERPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), FERPA regulates access to "education records." "Education records" are defined at § 1232g(a)(4)(A) as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." More specifically, FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of prior written consent from a parent or eligible student. To that end, the term "education records" has been and was "intended to be broadly construed, and that the exceptions . . . must be narrowly construed, since the value of [the parents'] right of access and [students'] right of privacy 'depreciates with every item that is excluded from the definition of 'education record.'" OAG 91-177, p. 3 (citation omitted); 98-ORD-162. With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), which are not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two-part test described above. Both the Kentucky Supreme Court and this Office have recognized that FERPA operates to bar public disclosure of education records, as that term is defined in federal law, and that FERPA is incorporated into the Open Records Act by KRS 61.878(1)(k).
Hardin Cnty. Schools v. Foster, 40 S.W.3d 865 (Ky. 2001); 99-ORD-217, inter alia .
Based on our in camera review of the withheld records, we find that certain of those records meet the two-pronged test of being education records and may continue to be withheld by the School District. Although we are compelled by the terms of in camera review not to specifically describe the records provided by the School District, we find that other of those records relate solely to the School District employee. Records relating, generally, to the suspension of the employee and recommendations from the DCBS do not directly, or even indirectly, relate to any student and thus are not protected from disclosure by FERPA or KFERPA.
KRS 61.878(1)(a) . In its argument for withholding the records under KRS 61.878(1)(a), the School District withheld records relating to the employee as it "was unable to corroborate or substantiate the complaints." The School District implies that the privacy interest of the employee should outweigh the public interest in the records relating to him because the allegations against that employee were not substantiated. We disagree with the School District as to withholding records relating solely to the School District employee.
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of misconduct, in various factual contexts. Although we are mindful of the principle that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context,"
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 327, 328 (Ky. 1992). We have generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges, of misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. This applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action will evidence whether the public agency faithfully discharged its duties.
97-ORD-121, p. 8. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] ? , if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p. 7. 9
Consistent with the principles set forth above, we find that the School District is obligated to disclose the records relating solely to the accused employee. 10 This decision comports with the statement of legislative policy codified at KRS 61.871, recognizing that "free and open examination of public records is in the public interest ? even though such examination may cause inconvenience or embarrassment to public officials or others."
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(a) exempts "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
2 KRS 61.878(1)(i) allows withholding 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[.]"
3 KRS 61.878(1)(k) exempts "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation[.]"
4 KRS 61.878(1)(l) allows for the exemption of "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
5 KRS 61.880(2)(c) states, in relevant part: "The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
6 The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
7 KFERPA refers to KRS 164.283 which, in general, requires schools to maintain the confidentiality of a student's academic records.
8 KRS 61.878(1)(j) allows for withholding "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
9 As stated in Kentucky Bd. of Examiners, supra., "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context ? ." We recognize that in some rare instances, an allegation of sexual misconduct may not result in records indicating whether the allegation was substantiated or unsubstantiated. The analysis in that context may weigh in favor of nondisclosure of the identity of the alleged harasser, because there would neither be a determination about whether the alleged harasser committed harassment, nor a vindication of the allegations.
10 Subject, of course, to redactions pursuant to KRS 61.878(1)(a), for information such as home address, in particular.