Request By:
Dr. Curt Foutch, Superintendent,
Ashland Public Schools
1420 Central Avenue
Ashland, Kentucky 41101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of November 17, 1988, with ten exhibits attached, Mr. Ralph T. McDermott, an attorney representing Officer Mike Tussey of the Ashland Police Department, asked that the attorney general take action "pursuant to the provisions of KRS 61.880(2)." The action is requested as a result of the Ashland Board of Education's indication that no records existed concerning the Board's closed session consideration of information alleging Officer Tussey had used profanity in a middle school classroom where he had been teaching.
As explained below, based upon the facts represented to this office in Mr. McDermott's November 17, 1988 letter to this office, and the attachments thereto, it appears the Ashland Board of Education acted consistent with the provisions of KRS 61.870 to 61.884, to the extent it promptly responded to a request to inspect public records and truthfully indicated it had no records of the type requested.
FACTUAL BACKGROUND
[This factual recitation contains those facts, drawn from Mr. McDermott's letter of November 17, 1988, supra, together with its ten attached exhibits, deemed pertinent to a review of a denial of inspection of public records pursuant to KRS 61.880(2). Factual allegations related to the Open Meetings laws are not addressed in detail since they are outside the scope of review pursuant to KRS 61.880(2). The McDermott letter of November 17, together with its attachments, are incorporated herein by reference, as the record reviewed.]
Officer Mike Tussey of the Ashland Police Department, as an employee of that department, taught certain courses at the Verity Middle School in Ashland, Kentucky concerning (1) police and (2) drugs.
At a regularly scheduled meeting of the Ashland Board of Education on September 26, 1988, the Board went into executive session during which ". . . a complaint was related to the Board concerning an alleged use of profanity by Officer Tussey in the classroom. "
As superintendent of the Ashland Schools, you were directed to investigate the complaint.
On September 27, 1988, Officer Tussey was advised he was suspended from teaching and was not to appear again at the Verity Middle School.
In an October 24, 1988 letter to Ashland Police Chief Ronald McBride (McDermott Exhibit 1), you confirmed that the Board of Education of Ashland received a complaint of alleged use of profanity in the classroom by Officer Tussey. You also indicated that it was determined, after a thorough investigation by you and your staff, that there is no evidence of misconduct on the part of Officer Tussey. You indicated Officer Tussey was reinstated to his assignment at Verity Middle School, and that the Board "regrets any adverse reflection this complaint may have caused on Officer Tussey's reputation. . . ."
In a letter dated November 9, 1988 (McDermott Exhibit 3), Mr. McDermott stated, in part:
Pursuant to the Kentucky Revised Statutes relating to Open Records, KRS 61.870 et seq., application is hereby made to you, as the official custodian of the Board's records, that all "Public Records" , as defined in KRS 61.870(2), be turned over to me for inspection, . . . . This request is directed only at so much of this executive session as involved the . . . allegation against Officer Tussey. . . .
By letter of November 11, 1988 (McDermott Exhibit 5), you advised Mr. McDermott, in part, that "There are no 'public records' as defined by KRS 61.870(2) relating to the Board's executive session on September 26, 1988."
By letter of November 11, 1988 (McDermott Exhibit 4) to you, supplementing his letter of November 9, 1988, Mr. McDermott indicated, in part, that he was advised by Board Attorney William Jones, by telephone, on November 10, 1988, that no records were made during the executive session ". . . wherein the complainant against Mike Tussey was discussed, and his suspension ordered." Mr. McDermott said he was thus advised, in effect, that there were no public records to be furnished. His letter asked that, in the absence of public records, "we be given a written resume of what occurred in executive session on . . . September 26, 1988, concerning the Mike Tussey matter." Mr. McDermott's letter also indicates "We will accept a resume agreed to by all Members of the Board, or we will also accept each Member's written recollection of what occurred."
You responded to Mr. McDermott's November 11, 1988 letter of supplementation (McDermott Exhibit 4) with a letter dated November 15, 1988, (McDermott Exhibit 6) basically addressing Mr. McDermott's Open Meetings law concerns.
Mr. McDermott's letter of November 17, 1988, to the Attorney General, asking that action be taken pursuant to the provisions of KRS 61.880(2), followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides, in substance, that a person whose request to inspect a public record has been denied, may have the denial reviewed by the Attorney General. The Attorney General, upon review, is to issue an opinion stating whether the agency "acted consistent with provisions of KRS 61.870 to 61.884" in connection with its denial.
Kentucky's Open Records laws do not empower the Attorney General's Office to order creation of records, nor do those laws require agencies to create records, e.g., resumes, written recollections, etc. See for example OAG 83-111.
Here, there was a request (and a supplement thereto) for certain records. The agency - the Ashland Board of Education - promptly responded to the request(s), indicating, in substance that records sought by the request(s) do not exist. This office must accept as truthful, absent clear evidence to the contrary, an agency's response that records of the type requested do not exist. See for example, OAG 86-35. Since the Ashland Board of Education, through its agent, promptly responded to a request to inspect records, and indicated, apparently truthfully, that records of the type sought do not exist, the Board appears to have acted "consistent with KRS 61.870 to 61.884."
If the Board of Education had received a written complaint concerning Officer Tussey, or created records describing the complaint, those records might have to be disclosed upon a proper request. There is some indication, however, that while the substance and disposition of a complaint might have to be made known, the identity of a complainant might be withheld as correspondence with a private individual, exempt from inspection absent a court order, in accordance with KRS 61.878(1)(g). See City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, at 660 (1982). And see, OAG 84-315.
The November 17, 1988 letter of Mr. McDermott to Attorney General Cowan, indicates a complaint was "related" to the Board on September 26, 1988. Use of the word "related" tends to indicate the complaint was verbally reported. This could be taken as corroboration that a "record" concerning the complaint, and within the scope of the request, does not exist.
Points made by Mr. McDermott regarding the Open Meetings laws are not addressed in detail here, where we take action under KRS 61.880(2), regarding Open Records. Jurisdiction to enforce the Open Meetings laws is vested with the Circuit Courts pursuant to KRS 61.845.
Suffice it to say in connection with Mr. McDermott's points regarding the Open Meetings laws: First, one who is teaching in a public school would probably be deemed under the aegis of the governing body of the school, and, to such extent, an "employee," of the school (or school system), at least in the generic sense. Accordingly, a court might well find that while one was not an "employee," in the sense of being on a payroll, one was nonetheless an employee for purposes of the Open Meetings laws related to matters for which a meeting may be closed (KRS 61.810(6)). Second, this office has opined previously that minutes of closed sessions of meetings are not required. See OAG 87-16, copy enclosed.
As required by statute, a copy of this opinion is being sent to the appealing party, Mr. Ralph T. McDermott, Esq., who has a right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.