19-ORD-228
December 9, 2019
In re: Mark Graham/Christian County Public Schools
Summary:
Christian County Public Schools (“CCPS”) initially
violated KRS 61.880(1), but corrected the error on appeal. CCPS
violated the Open Records Act by withholding three emails
regarding a “Nickel Tax,” but properly withheld five of the emails.
CCPS properly withheld groups of emails as “preliminary” under
KRS 61.878(1)(i) and (j), as records “of a purely personal nature
unrelated to any governmental function” under KRS 61.878(1)(p),
and as protected education records under FERPA and KFERPA,
incorporated into the Act by KRS 61.878(1)(k) and (l).
Open Records Decision
The question presented in this appeal is whether the Christian County
Public Schools (“CCPS”) violated the Open Records Act (“Act”) in the
disposition of a request for records submitted by Mark A. Graham
(“Appellant’s”). Based on the following, we find that CCPS violated KRS
61.880(1) by failing to identify emails or categories of emails and provide a brief
explanation of how the asserted exceptions applied to each, but corrected the
error on appeal. CCPS violated the Act in withholding three emails regarding a
“Nickel Tax,” but properly withheld five of the emails. CCPS properly withheld
groups of emails as “preliminary” under KRS 61.878(1)(i) and (j), as records “of a
purely personal nature unrelated to any governmental function” under KRS
61.878(1)(p), and also as protected education records under 20 U.S.C. Section1232g (“FERPA”), and KRS 160.700, et seq. (“KFERPA”), incorporated into the
Act by KRS 61.878(1)(k) and (l).
On September 24, 2019, Appellant requested from CCPS, “[a]ny and all
emails sent or received by the following [CCPS] employees: 1. Stephanie Harton
2. Pam Schmidt Dossett for the entire month of August and September 1-24,
2019.”1 On September 30, 2019, CCPS responded by providing access to some of
Stephanie Harton’s emails, but denying access to an unidentified number of
responsive emails. CCPS stated that KRS 61.878(1)(a), KRS 61.878(1)(i), KRS
61.878(1)(p), KRS 61.878(1)(k) incorporating the FERPA, and KRS 61.878(1)(l)
incorporating KFERPA justified withholding the emails, and explained why it
was asserting the exceptions. However, CCPS failed to identify the emails or
categories of emails it withheld, and it failed explain how the asserted exceptions
applied to each email or category of emails.
On October 4, 2019, Appellant appealed, arguing, “Stephanie Harton is an
employee who is for the Nickel Tax and is only soliciting support for the Nickel
Tax using her CCPS issued email…I do not believe these emails fall under the
scope of exempted information[.]” Appellant also argued that, “[CCPS]
is…saying that I am not allowed to have copies of [Stephanie Harton’s] non-
school related emails because they are private emails between her and her
friends/family/co-workers. I do not believe these emails fall under the scope of
exempted information[.]” Appellant argued that CCPS violated the Act by
blanketly withholding some emails “without redacting the names of students,
teachers, parents, etc.”
On October 18, 2019, CCPS responded to the appeal by providing this
office 333 pages of responsive emails for purposes of in camera review, under
KRS 61.880(2)(c)2 and 40 KAR 1:0303, Section 3. CCPS explained that the school
1 Appellant filed a separate appeal regarding the CCPS response to his request for the emails of
Pam Schmidt Dossett. That appeal is the subject of a separate decision, issued by this office
under appeal number 201900408.
2 KRS 61.880(2)(c) states: “On the day that the Attorney General renders his decision, he shall
mail a copy to the agency and a copy to the person who requested the record in question. 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.”system employs Stephanie Harton as a Physical Therapist, and it identified her
emails by subject categories and stated the specific exemptions authorizing the
withholding of each email or category of emails. On November 6, 2019, we
asked CCPS to verify that no additional responsive emails existed in its
possession. On November 26, 2019, CCPS verified that it had provided all
existing responsive emails to this office.
CPS Initially Violated KRS 61.880(1) but Corrected the Error on Appeal.
CCPS’s initial response to the requests violated KRS 61.880(1), because it did not
identify emails or categories of emails, and failed explain how the asserted
exceptions applied to each email or category of emails. Pursuant to KRS
61.880(1), a “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 mere invocation of exceptions, without identifying the records
withheld and explaining how the asserted exceptions apply, does not satisfy the
burden of proof imposed on an agency under KRS 61.880(2)(c) to justify the
nondisclosure of public records. 12-ORD-211, p. 6; 03-ORD-165. CCPS corrected
the error on appeal by identifying individual emails and categorizing emails by
subject, with an explanation of how each asserted exception applied. CCPS
fulfilled its duty under KRS 61.880(1) by providing a copy of the corrected
response to this office and Appellant.
“Nickel Tax” Emails. CCPS identified 9 emails relating to the “Nickel
Tax,” and argued that the emails were excluded as “preliminary” under KRS
61.878(1)(i) and (j),4 or as records “of a purely personal nature unrelated to any
governmental function” under KRS 61.878(1)(p). Our in camera review shows
3 40 KAR 1:030, Section 3 states: “Additional Documentation. KRS 61.846(2) and 61.880(2)
authorizes the Attorney General to request additional documentation from the agency against
which a complaint is made. If documents thus obtained are copies of documents claimed by the
agency to be exempt from the Open Records Law, the Attorney General shall not disclose them
and shall destroy the copies at the time the decision is rendered.”
4 KRS 61.878(1)(i) and (j), respectively, create exceptions to the Act in the cases of: (i) preliminary
drafts, notes, correspondence with private individuals other than correspondence which is
intended to give notice of final action of a public agency; [and] (j) preliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated or
recommended[.]that CCPS properly withheld the four emails found on pages 1 and 65 under KRS
61.878(1)(j), because those emails are solely between Stephanie Harton and
another CCPS employee in which they express opinions and recommendations.
In 99-ORD-206, we held that emails between state agency employees in which
opinions were expressed, but were not adopted into final agency action, were
properly withheld under KRS 61.878(1)(j). Id., p. 9. No evidence exists in the
record that CCPS adopted these emails as part of a final policy or action.
Accordingly, the emails on pages 1 and 6 were properly withheld under KRS
61.878(1)(j).
The 3 emails exchanged with Hopkinsville High School Principal John
Gunn found on pages 2-5 are not exempt, but the reply from Stephanie Harton
found at the bottom of page 3 is exempt. CCPS argues that all of the emails are
exempt under KRS 61.878(1)(i) and (j), and KRS 61.878(1)(p), but the record does
not support that argument.
The emails are also not exempt under KRS 61.878(1)(p), which was
enacted by the General Assembly in 2018 to create an exception to the Act for
“[c]ommunications of a purely personal nature unrelated to any governmental
function.” Our in camera review shows that these emails relate to Stephanie
Harton and Principal Gunn’s governmental function as educators, and therefore
are not “communications of a purely personal nature.” Accordingly, exemption
of the emails under KRS 61.878(1)(p) is not appropriate.
Withholding the three emails exchanged with Principal Gunn under KRS
61.878(1)(j) was inappropriate, because the emails were sent to two recipients
who do not have non-government email addresses and therefore do not appear
to be CCPS employees. As such, the emails are not communications solely
“between state agency employees,” as required for application of KRS
61.878(1)(j). See 99-ORD-206. However, the reply email from Stephanie Harton
to Principal Gunn found at the bottom of page 3 is “preliminary” under this
exception because she replied solely to Principal Gunn expressing opinions and
recommendations. As such, CCPS properly withheld Stephanie Harton’s reply
5 Pages 1 and 6 are duplicate copies of an email exchange relating to a fake Facebook account.
We shall address the pages in this decision separately to avoid confusion.email under KRS 61.878(1)(j). See 99-ORD-206. Accordingly, CCPS may redact
the reply email from pages 2 through 5, as permitted by KRS 61.878(4).6
The emails on pages 2-5 are not exempt under KRS 61.878(1)(i). In 00-
ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends
protection to “correspondence to private individuals,” is “generally reserved for
that narrow category of public records that reflects letters exchanged by private
citizens and public agencies or officials under conditions in which the candor of the
correspondents depends on assurances of confidentiality.” Id., p. 2 (emphasis added).
We have found that the conditions affecting candor of the correspondence must
be assessed in view of the totality of the circumstances. 18-ORD-117.
Here, Principal Gunn copied his two emails to 17 employee and non-
employee recipients, and he invited those recipients to share their advice with
others. The totality of the circumstances does not evidence “conditions in which
the candor of the correspondents depends on assurances of confidentiality”
necessary for application of KRS 61.878(1)(i). The reply from Lee Harton to
Principal Gunn found on pages 4 - 5 is not exempt. The fact that Mr. Harton, a
private individual, used the “reply to all” function to the 17 recipients of
Principal Gunn’s email negates any suggestion that he relied on assurances of
confidentiality. Accordingly, we find that the reply is not exempt under KRS
61.878(1)(i). However, CCPS may redact the personal home addresses, personal
email addresses, and personal telephone numbers from the responsive emails to
protect personal privacy, per KRS 61.878(1)(a).7 See 16-ORD-205, p. 5 (following
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)).
The email from Kaitlyn Selfridge found on page 10 is exempt under KRS
61.878(1)(i). Our in camera review shows that the email consists of a draft
spreadsheet circulated solely among Stephanie Harton and other CCPS
employees for purpose of review and comment. Emails consisting of
6 KRS 61.878(4) provides: “[i]f any public record contains material which is not excepted under
this section, the public agency shall separate the excepted and make the nonexcepted material
available for examination.”
7 KRS 61.878(1)(a) excludes: “[p]ublic records containing information of a personal nature where
the public disclosure thereof would constitute a clearly unwarranted invasion of personal
privacy[.]”preliminary drafts and notes, which have not been adopted as the basis of final
action of the public agency, are properly within the scope of the KRS 61.878(1)(i).
See University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373,
378 (Ky. 1992). No evidence exists in the record that CCPS adopted this email as
part of a final policy or action. Accordingly, CCPS properly withheld the email
pursuant to KRS 61.878(1)(i).
Emails Exchanged with CCPS Staff. Likewise, CCPS properly withheld
the emails on pages 11 and 17, because the exchanges consist of preliminary
drafts, and reply comments and recommendations. Our in camera review shows
that these emails meet the definition of “drafts” under KRS 61.878(1)(i), because
they are a “tentative version, sketch, or outline of a formal and final written
product.” See 97-ORD-183, p. 4. The reply emails are recommendations and
opinions from CCPS employees, and no evidence exists in the record that CCPS
adopted the emails as the basis of a final agency action. Accordingly, CCPS
properly withheld the emails on pages 11 and 17 as drafts under KRS 61.878(1)(i),
and properly withheld the replies under KRS 61.878(1)(j).
CCPS identified three emails on pages 12 - 148 as physical therapy
questions and requests for assistance to Stephanie Harton from other CCPS
educators. Our in camera review shows that these emails are not exempt because
the recipients of the emails did not respond. In 11-ORD-052, we found that KRS
61.878(1)(j) does not extend to emails between agency employees consisting of
mere factual updates, gratuitous commentary, questions, or the mere exchange
of information. Id., pp. 6–7. Absent responses stating opinions or
recommendations, the emails on pages 12–14 are not exempt, but CCPS may
redact the personal telephone numbers from the emails, per KRS 61.878(1)(a). See
Kentucky New Era, Inc., 415 S.W.3d at 83.
Emails Relating to Individual Students. On appeal, CCPS identified 261
emails found on pages 18–190 as emails that directly relate to students. Our in
camera review shows that the emails identify individual students by name, and
also contain discussions of student health conditions, rehabilitation needs, and
medical information that can be used to identify individual students. CCPS
8 Pages 13 and 14 are duplicate copies of emails relating to an exchange of note card messages.
We shall address the pages in this decision separately to avoid confusion.invoked FERPA and KRS 61.878(1)(k),9 which incorporates federal restrictions on
disclosure into the Act, and KFERPA, which is incorporated into the Act by KRS
61.878(1)(l),10 the “preliminary” records exemption under KRS 61.878(1)(j), and
the “personal privacy” exemption under KRS 61.878(1)(a) in withholding these
emails. We find no error.
Both FERPA and KFERPA preclude the disclosure of education records
containing personally identifiable student information without prior parental
written consent. 17-ORD-191. The relevant provision of FERPA, 20 U.S.C. §
1232g(b)(1), provides:
No funds shall be made available under any applicable program to
any educational agency or institution which has a policy or practice
of permitting the release of education records (or personally
identifiable information contained therein other than directory
information, as defined in paragraph (5) of subsection (a) of this
section) of students without the written consent of their parents to
any individual, agency, or organization, other than [certain limited
exceptions.]
“Education records” are defined in 20 U.S.C. § 1232g(a)(4)(A) as “those records,
files, documents, and other materials which … contain information directly
related to a student; and … are maintained by an educational agency or
institution or by a person acting for such agency or institution.” KFERPA
generally requires schools to maintain the confidentiality of student academic
records. KRS 164.283; 18-ORD-087. Our in camera review shows that the emails
are brief exchanges with teachers that name students, and directly relate the
student’s healthcare, rehabilitation, or education needs. We find that CCPS
properly construed the emails as “education records” as defined by FERPA and
KFERPA.
9 KRS 61.878(1)(k) exempts “[p]ublic records or information the disclosure of which is prohibited
by federal law or regulation[.]”
10 KRS 61.878(1)(l) exempts “[p]ublic records or information the disclosure of which is prohibited
or restricted or otherwise made confidential by enactment of the General Assembly[.]”Appellant argues that CCPS was required to redact the excepted
information from the emails and make the nonexcepted material available for
examination, per KRS 61.878(4). The Act prohibits the “nondisclosure of an
entire record or file on the ground that some part of the record or file is exempt.”
Kentucky New Era, Inc., 415 S.W.3d at 88. In addition, the Supreme Court gave
tacit approval of redaction of education records otherwise subject to
nondisclosure under FERPA and KFERPA, finding that statistical compilations of
student disciplinary records did not meet the definition of “education records”
after all student personally identifying information was removed. Hardin Cty.
Sch. v. Foster, 40 S.W.3d 865, 869 (Ky. 2001).
However, the facts of this appeal support withholding the 261 emails
found on pages 18–190. Our in camera review shows that the specific
descriptions of student health and rehabilitation needs stated in these brief
emails, viewed in the context of the school system employing Stephanie Harton,
make the referenced students readily identifiable. An educational agency is
prohibited from releasing education records where, despite redaction, it has
reason to believe the requester, “knows the identity of the student to whom the
record relates.” 34 C.F.R. § 99.3. There is no evidence that Appellant knows the
identity of individual students referenced in the emails, but we find that students
within the school system would be readily identifiable from the particular
descriptions stated in these emails.
Further, additional exemptions apply to these emails providing support
for withholding the records. Some emails contain teacher questions regarding an
individual
student’s
rehabilitation
equipment
and
Stephanie
Harton’s
recommendations and opinions in reply, therefore making the emails exempt as
“preliminary” under KRS 61.878(1)(j). See 99-ORD-206. Some emails contain
health information and the identification of medical conditions, the
nondisclosure of which has been upheld by this office as a “clearly unwarranted
invasion of personal privacy,” pursuant to KRS 61.878(1)(a). 09-ORD-059, p. 10;
05-ORD-239. Some of the emails contain drafts of individual education plans for
review and comment, making them “preliminary” under KRS 61.878(1)(i). See
97-ORD-183, p. 4. Under the facts presented in this appeal, we find that CCPS
did not violate the Act in withholding the brief emails containing information
subject to multiple exemptions.Emails Consisting of Personal Notes and Reminders. Our in camera
review shows that the 62 emails found on pages 191-250, described by CCPS as
Stephanie Harton’s work related notes and self-reminders, were properly
withheld under KRS 61.878(1)(i). These emails consist of very brief notes relating
to Ms. Harton’s physical therapy work, written as reminders of the assistance
needs of individual students and teachers. The emails are “notes” within the
meaning of KRS 61.878(1)(i), because they were “created as an aid to memory or
as a basis for a fuller statement, as are, for example, written or shorthand notes
taken at a meeting.” 97-ORD-183, p. 4; 05-ORD-179.
Emails Relating to Purely Personal Matters. CCPS identified emails on
pages 7–9, 15–16, and pages 251–333 as purely personal emails, excluded under
KRS 61.878(1)(p). Our in camera review shows that the emails found on pages 7–
9, and pages 15-16 are related solely to the school activities of Stephanie Harton’s
children. The emails on pages 251–333 consist of Ms. Harton’s communications
with her church, social clubs, and family members. The emails are of a purely
personal nature and do not relate to any governmental function. Accordingly,
we find that CCPS properly withheld these emails pursuant to KRS 61.878(1)(p).
A party aggrieved by this decision shall 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.
Andy Beshear
Attorney General
J. Marcus Jones
Assistant Attorney General
#409
Distributed to:
Mark A. GrahamMary Ann Gemmill
John N. Lackey, Jr., Esq.