Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Bullitt County Public Schools' denial of Courier-Journal reporter Joseph Gerth's July 23, 1993, request to inspect and copy "any and all records relating to the 'public reprimands' of teachers Keith Wiedmar and Jim Burris for making statements 'unbecoming a teacher. '" In his request, Mr. Gerth indicated that although he had obtained copies of the July 8 letters of reprimand, he had not received "the 'attached memorandum' referred to in each reprimand and copies of the investigative memos that should have been attached to the official actions." Mr. Gerth offered his assurance that The Courier-Journal would not use the names of minor children involved in the events giving rise to these reprimands without their parents' consent.
On July 27, 1993, Mr. Eric G. Farris, an attorney representing the Bullitt County Public Schools, denied Mr. Gerth's request. Relying on KRS 61.878(1)(a), (g), and (h), he explained:
These records contain statements of students, parents, and staff compiled in the investigation of the comments allegedly made by Mr. Wiedmar and Mr. Burris. We believe their public disclosure would constitute an unwarranted invasion of personal privacy for these people, as well as the teachers involved. The teachers themselves were only given a summary memorandum of the findings of the interviewers. They were not provided with the statements themselves, with the exception of Mr. Burris who will be provided that information as a result of his request for a tribunal hearing over the public reprimand. We believe the release of these statements would prove embarrassing for the students involved, possibly lead to chiding by other students, and likely would impede the progress of investigating future allegations.
Furthermore, these notes and materials were preliminary in nature gathered only for the purpose of supporting the memoranda containing the opinions of the interviewers who made a final recommendation to the Superintendent as to the appropriate disciplinary action.
On behalf of her clients, The Courier-Journal and Mr. Gerth, Ms. Kimberly K. Greene initiated this appeal on August 10, 1993. Ms. Green challenges Mr. Farris's invocation of KRS 61.878(1)(a), noting that the cited exception "does not override the public's right to know the details of the misconduct and the subsequent disciplinary action. " Citing
University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992),
McCall v. Courier-Journal, Ky., 623 S.W.2d 882 (1981), cert. denied, 456 U.S. 975 (1982), and OAG 92-34, OAG 91-41; and OAG 90-58, she argues:
[T]he Supreme Court has held that where matters of public interest or public concern are involved, there is no right to privacy. [Citations omitted.] There are surely few subjects of greater concern to the public than the education of its youth. Parents entrust their children every day to the care of public school teachers. Therefore, as public interest is at its zenith in matters concerning public education, the right to privacy is nonexistent. This is particularly true when the records sought relate to the circumstances surrounding the investigation and reprimand of a teacher for matters relating to the performance of his job.
Ms. Greene asserts that Mr. Farris's reliance on the privacy exception relative to the students, parents, and staff who made the statements contained in the disputed records is similarly misplaced. She notes that KRS 61.878(4) permits an agency to redact identifying information from otherwise nonexempt records, and that Mr. Gerth indicated in his request that the Courier-Journal would not use the names of minor children without their parents' consent. Mr. Farris's concerns are therefore, in her view, unwarranted.
Ms. Greene maintains that Mr. Farris is "equally misguided" in characterizing the requested records as preliminary documents. 1 She notes that according to the letters of reprimand issued by Superintendent George Valentine, the charges against Mr. Wiedmar and Mr. Burris were investigated by Assistant Superintendent Leon Remington and, in Mr. Burris's case, Middle School Supervisor Karen Travis, and in Mr. Wiedmar's case, Mr. Farris. It is Ms. Greene's understanding that their findings and recommendations were compiled into a memorandum that was attached to the letters of reprimand, and formed the basis for the Superintendent's decision. In her view:
Whatever preliminary status the investigation report once enjoyed was clearly lost when the Superintendent took final action in this matter. Kentucky courts have found that once preliminary notes, recommendations and investigations are utilized by an agency as a part of a particular action, they are no longer "preliminary" for purposes of the exemption provision of the Open Records Act. Once the agency takes final action, such as the public reprimands here, those materials that were once preliminary in nature lose their exempt status.
University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d at 378;
Kentucky State Bd. of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953, 956 (1983).
The Superintendent has completed his enforcement action in this matter and has issued letters of reprimand, as provided by KRS 161.790(a). Further, as to Jim Burris, the only teacher who appealed the reprimand, a three-member public appeals panel appointed by the state Department of Education has affirmed the final action. The Courier-Journal is entitled to access to all recommendations and reports incorporated into the final decision to reprimand these teachers. No statutory exemptions provide otherwise.
Ms. Greene thereby concludes that because the Superintendent has taken final action in this matter, he cannot withhold the investigatory records.
Finally, Ms. Greene argues that The Courier-Journal is entitled to inspect any complaints or initiating documents which spawned the investigation into Mr. Wiedmar's and Mr. Burris's conduct. In support of this position, she cites
Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983) and OAG 90-58.
In closing, Ms. Greene observes:
One of the purposes of the Open Records Act is to allow the public to scrutinize the performance of public agencies and public employees. Board of Medical Licensure, supra at 328. The public has a compelling interest in how this school superintendent addresses complaints about his teachers. It also has a right to examine the circumstances leading up to a disciplinary action against a public school teacher. This is true even if "such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871.
She urges the Attorney General to issue a decision consistent with this view.
We are asked to determine whether the Bullitt County Public Schools properly denied Mr. Gerth's request for all records relating to the public reprimands of teachers Keith Wiedmar and Jim Burris pursuant to KRS 61.878(1)(a), (g), and (h). For the reasons set forth below, we conclude that Mr. Farris violated the Open Records Law by denying Mr. Gerth access to the complaints or other initiating documents which spawned the investigations into the teachers' conduct, and the documents variously described as "the attached memorand[a]" and the "summary memorand[a]" which were expressly incorporated into the public reprimands issued by Superintendent Valentine. We further conclude that the "reports" which were placed in Mr. Burris's and Mr. Wiedmar's personnel files and which consist of notes and other materials compiled in the investigations, including witness statements from children, parents, and staff, were improperly withheld if they formed the basis of the summary memoranda prepared by Assistant Superintendent Remington, Ms. Travis, and Mr. Farris.
It is the opinion of this Office that KRS 61.878(1)(a), the privacy exception, does not authorize blanket nondisclosure of records relating to disciplinary actions taken against public employees. Nor, in our view, do KRS 61.878(1)(g) and (h), the "preliminary documents" exceptions which are hereinafter referred to as KRS 61.878(1)(h) and (i), authorize nondisclosure of records relating to public employee discipline and consisting of complaints, final agency action, and documents incorporated thereunto. Nevertheless, we believe that the Bullitt County Public Schools may, pursuant to KRS 61.878(4), redact any personally identifying information contained in those records relating to students, parents, and staff members other than Mr. Burris and Mr. Wiedmar inasmuch as their privacy interests are superior to the public's interest in ascertaining their identities.
Among the documents which are exempt from the mandatory disclosure provisions of the Open Records Law are:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(1)(a).
The Attorney General has consistently recognized that the privacy exception cannot be invoked to protect a public employee against whom disciplinary action has been taken. Thus, in OAG 88-25, at page 3, this Office held, "Disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 78-133; OAG 87-64; OAG 88-25; OAG 91-41; OAG 91-198; OAG 92-34; 93-ORD-69. In a similar vein, this Office has recognized:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS 61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed, that it was outweighed by the public's right to be informed.
OAG 91-41, at p. 5. Finally, in OAG 78-133, at p. 3, we observed:
If charges are made which are serious enough, if true, to require disciplinary punishment, the public has a right to know what the charges are. When final action has been taken on the charges there is no longer any reason or authority for keeping them confidential.
We therefore conclude that the Bullitt County Public Schools improperly invoked KRS 61.878(1)(a) to authorize nondisclosure of the complaints or charges which gave rise to the disciplinary actions against Mr. Burris and Mr. Wiedmar, and documents evidencing the final actions taken against them, including reports or memoranda incorporated into those final actions.
Our conclusion is not altered by, but instead finds support in, the Kentucky Supreme Court's recent analysis of the privacy exception. In
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times, Co., Ky., 826 S.W.2d 324, 327, 328 (1992), the Court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Kentucky Board of Examiners, supra at 328.
The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life. The Superintendent of the Bullitt County Public Schools is responsible for all personnel actions including hiring, assignments, transfer, dismissal, suspension, reinstatement, promotion and reporting the actions to the local board. KRS 160.390. Disclosure of the records will satisfy the public's interest in knowing that the Superintendent has faithfully performed his duties by investigating allegations of teacher misconduct and meting out discipline where appropriate. This interest is a substantial one given the importance of public education.
As we have explained, the privacy interests of a public employee who has been disciplined for misconduct relating to his employment can be accorded little weight. The countervailing privacy interests are instead those of the students who were harassed by Mr. Burris and Mr. Wiedmar, and the parents and other staff members who participated in the investigation. There can be little doubt that the allegations made against Mr. Burris and Mr. Wiedmar by the students "touch[] upon . . . personal features of private lives." Kentucky Board of Examiners, supra, at 328. We believe that disclosure of the names of the complaining students would constitute a serious invasion of their personal privacy, as well as the personal privacy of their parents and other staff members.
KRS 61.878(4) expressly provides:
If 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.
In our view, the privacy interests of the students, parents, and staff members whose names appear in the disputed records can be protected by redacting their names and other personally identifying information. The public interest in monitoring the Superintendent's handling of personnel matter and insuring that he properly executed his statutory duties relative to employee discipline can at the same time be served by release of the records. While we concur with Mr. Farris in his belief that the students', parents', and staff members' privacy interest is superior to the public's interest in ascertaining their identities, we do not believe that the privacy exception warrants wholesale nondisclosure of the records implicated by Mr. Gerth's request.
It should also be noted that disclosure of the students' names may implicate The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, popularly known as the Buckley Amendment. That statute regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. The Buckley Amendment precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. 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 [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth]) of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities]. . . .
This statute should be born in mind by the Bullitt County Public Schools in separating the exempt material from the nonexempt material and making the nonexempt material available for inspection pursuant to KRS 61.878(4).
Turning to Mr. Farris's second line of defense, we find that neither KRS 61.878(1)(h) nor KRS 61.878(1)(i) authorize the Bullitt County Public Schools to withhold all of the records relating to the public reprimands of teachers Keith Wiedmar and Jim Burris. These exceptions permit a public agency to withhold:
(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying these exemptions is discussed at p. 4 of OAG 88-85, where this Office opined:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
This dichotomy is best illustrated in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt form public disclosure as preliminary documents. At p. 659, the court reasoned:
It is the opinion of this court that subsections (g) and (h) [now codified as subsections (h) and (i)] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision.
Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
See also,
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 957 (1983) (holding that "those documents defined in subsection (g) and (h) [now (h) and (i)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records. . . . Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under subsection [(h) and (i)] of the Act.").
In contrast, predecisional and investigative documents which are incorporated by the agency into its final action forfeit their preliminary status and are therefore subject to inspection. This rule extends to the complaints or written charges which initially spawned an investigation. "Inasmuch as final actions stem from the complaints they must be deemed incorporated as part of the final determination." Kentucky State Board of Medical Licensure, supra, at 956. See also, OAG 85-126; OAG 85-136; OAG 90-58. Records which are of a purely internal preliminary investigatory nature are exempt under the principles set forth in these decisions. Records which are initially preliminary in character but are subsequently adopted by the agency as the basis of its final action become releasable as public records.
In the present appeal, it is apparent that the Bullitt County Public Schools violated the Open Records Act by withholding the complaints which spawned the investigations into Mr. Burris's and Mr. Wiedmar's conduct. It is equally apparent that the school system erred in withholding the summary memoranda which were physically incorporated into the letters of reprimand and which formed the basis of the Superintendent's final decision in these matters. These documents must be released forthwith.
If the reports which were placed in Mr. Burris's and Mr. Wiedmar's personnel files, and which consist of notes and other materials compiled in the investigation, including witness statements, were for all practical purposes adopted by the Superintendent as the basis of his action, their preliminary characterization is also lost. While we do not concur with Ms. Greene in her belief that once final action is taken all preliminary documents lose their exempt status, 2 we believe it is significant that both Superintendent Valentine and Mr. Farris acknowledge that the memoranda which were incorporated into the letters of reprimand represented little more than a summary of the investigative report and recommendations of the Assistant Superintendent, Ms. Travis, and Mr. Farris, and were deemed sufficiently "final" that they were placed in the employee's personnel file. The Bullitt County Public Schools may, of course, redact the names of students, parents, and other staff members who participated in the investigation pursuant to KRS 61.878(4).
The Bullitt County Public Schools and Ms. Greene may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 It is unclear whether in citing KRS 61.878(1)(g) and (h) Mr. Farris intended to invoke KRS 61.878(1)(h) and (i), the "preliminary documents" exceptions which were formerly codified as KRS 61.878(1)(g) and (h), or the current KRS 61.878(1)(g), relating to records of agencies involved in administrative adjudication that were compiled in the process of investigating statutory or regulatory violations, and KRS 61.878(1)(h), relating to preliminary drafts and notes. Based on the footnote appearing on page 3 of her appeal, Ms. Greene apparently believes that Mr. Farris intended to cite the current KRS 61.878(1)(g). Inasmuch as he has completely failed to explain how that exception applies to the records withheld or to sustain the agency's statutory burden of proof relative to its invocation, we are unable to rule on the applicability of that exception in the present appeal. See 92-ORD-1020.
2 See our discussion at page 3 and 4 of 93-ORD-25 in which we reject this argument. (Copy attached.)