Request By:
L. Larry Harper, Superintendent
McCracken County Public Schools
260 Bleich Road
Paducah, Kentucky 42003-5598
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ava Crow, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request of Maureen Fitzgerald of the Protection and Advocacy Division of the Department of Public Advocacy for access to records relating to an incident involving a student in your school district.
In a letter to you, dated November 8, 1990, Ms. Fitzgerald made the folowing request for access to documents:
As you know, our agency is representing Ty Howard. Please forward a copy of the internal investigation of Ty's isolation at Lone Oak Middle School conducted by your staff to me at the above address.
Attached to Ms. Fitzgerald's letter was a copy of a document designated "Appointment of Representative" whereby Bonnie Young, mother of Ty Howard, appointed and authorized the Department of Public Advocacy to act as representative for Ty Howard in educational matters. The document also authorized the release of records, reports and other materials involving Ty Howard to the Department of Public Advocacy.
You responded to Ms. Fitzgerald and Benjamin J. Lookofsky, Esq., who is not a party to this appeal, in a letter dated November 16, 1990. You advised that the requests for access to the report made by members of your staff concerning the internal investigation of the disciplinary action taken against Ty Howard, a student in your school district at that time, was being denied pursuant to KRS 61.878(1)(a), (g), (h) and (j). You specifically referred to the privacy exception to public inspection and the exception concerning intra office memoranda setting forth observations of school personnel which do not represent a final decision of the school superintendent. You also mentioned KRS 161.790(5) and (9) which you maintain prohibit disclosure of disciplinary personnel decisions.
In her letter of appeal Ms. Crow states that her Department, under state and federal law, is charged with the responsibility of protecting and advocating the rights of children and adults with developmental disabilities or mental health problems. KRS 31.030(9) and 42 U.S.C. 6042 and 10804. The material sought concerned the disciplining of a student so that her Department could determine what, if any, advocacy and protection services that child might need to avoid a reoccurrence of a situation where he had been placed in a janitor's closet at the school which allegedly contained, among other things, cleaning solvents and agents.
Ms. Crow seeks access to the final report of the internal investigation of the matter and such other documents as are necessary to allow her Department to determine if it needs to "protect and advocate" the rights of this particular child and other developmentally disabled or mentally ill students at the school. She maintains that the specific statutory purpose of her Department entitles her to obtain access to the documents in question.
OPINION OF THE ATTORNEY GENERAL
Among the statutory sections you have cited to support your denial of the request are KRS 61.878(1)(j) and KRS 161.790(5) and (9). KRS 61.878(1)(j) authorizes a public agency to deny access to public records where disclosure is prohibited or restricted by an enactment of the General Assembly. However, we do not see that KRS 161.790 has anything to do with the situation under review as that statute pertains to the termination of a teacher's contract. Subsection (5) of the statute provides that the hearing may be private and subsection (9) concerns penalties other than termination of the contract that may be imposed.
It is possible that in citing KRS 61.878(1)(g) and (h), relative to preliminary material being excluded from inspection, you were relying upon the case of
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). That case held that the investigative files of the police department's internal affairs section may be withheld from public inspection as preliminary documents because that material was not a final report. It was sent to the police chief who ultimately rendered the decision on the matter under investigation.
While that case and those statutory provisions would enable you to refrain from disclosing the documents in question to most persons, they are not applicable in this particular situation.
KRS 61.878(5) provides as follows:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate public need or is necessary in the performance of a legitimate government function.
There is no doubt that both the McCracken County School District and the Department of Public Advocacy are public agencies as that term is defined in KRS 61.870(1). Further, the exchange of information is necessary for the Department of Public Advocacy in its performance of a function mandated to it under both state and federal statutes. The Department of Public Advocacy is required to protect and advocate the rights of children and adults with developmental disabilities and mental health problems. It must determine what action it needs to take in view of the punishment apparently inflicted upon the child involved here.
In OAG 85-94, copy enclosed, we said that even if records are exempt from inspection by the public generally, they should be made available by one public agency to another for legitimate governmental purposes. Other prior opinions of this office concluding that records of a public agency should be made available to another public agency where that agency is engaged in a legitimate governmental purpose are OAG 79-608, OAG 79-475 and OAG 77-666, copies of which are enclosed.
Finally, we are not aware of any provisions in the "Family Educational and Privacy Rights" Act, 20 U.S.C. § 1232g, which would preclude the release of documents of the type sought here to the Department of Public Advocacy by the school district.
It is, therefore, the opinion of the Attorney General that the school district improperly denied the request of the Department of Public Advocacy for access to material pertaining to the internal investigation conducted by school authorities relative to a disciplinary proceeding involving the student in question. The provisions of KRS 61.878(5) require such a disclosure to a public agency in the performance of its legitimate governmental functions.
As required by statute, a copy of this opinion is being mailed to the appealing party, Ava Crow, Esq. The school district has the right to challenge the findings and conclusions set forth in this opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.