Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky University (EKU) violated the Open Records Act in its partial denial of Richmond Register Editor Jim Todd's request for records and information concerning a complaint relating to an EKU Model Laboratory School faculty member. For the reasons that follow, we find that EKU properly invoked KRS 61.878(1)(h) in its partial denial of the request for records which were part of an ongoing investigation.
In his November 17, 2006, request, Mr. Todd made the following request for access and copies of:
1. All documents that relate to the complaint concerning the Model Laboratory School faculty member who resigned Thursday, Nov. 9.
2. The name of the faculty who resigned.
3. A copy of the complaint(s) filed against the faculty member who resigned Thursday Nov. 9.
4. The name of the person who made the complaint against the faculty member.
5. The date the complaint was received.
6. A copy of the official resignation letter from the Model Laboratory School faculty member.
7. All material documenting any and all agreements between the faculty member, Model Laboratory School and/or Eastern Kentucky University concerning the faculty member's resignation.
8. Any and all documentation of any agreement(s) between Model Laboratory School and/or Eastern Kentucky University with the student's family.
By letter dated November 22, 2006, Cheryl K. Harris, University Counsel, EKU, responded to Mr. Todd's request, advising in relevant part:
Request numbers 2, 4, and 5 seek information rather than documents. In response to request numbers 1, 3, 4, 5, and 8, to the extent these requests seek documents and materials, the University's investigation relating to the referenced complaint remains open. Thus, to the extent that any documents may exist, those documents relating to the referenced complaint will not be provided pursuant to the following exemptions under the Open Records Act.
Regarding request number 6, a copy of the faculty member's resignation is being provided with this response. This document also provides the information sought in request number 2. Additionally, this same document is the only document responsive to request number 7.
As to request number 8, the Register's request does not identify a particular student and/or his/her family. In addition, please see the response above relating to request numbers 1, 3, 4, 5, and 8.
Dissatisfied with EKU's response and explanation of the cited exemptions from disclosure, Mr. Todd initiated the instant appeal.
After receipt of notification of the appeal, Ms. Harris provided this office with a response to the issues raised in the appeal. Supplementing EKU's initial response, she explained that the requested records withheld from disclosure were part of an ongoing investigation of a University faculty member who worked at the Model Laboratory School, a primary and secondary school operated at the University, and his possible violation of University policies by engaging in inappropriate e-mail communications with students. Reiterating that the denial of request numbers 1, 3, 4, and 5 was based on KRS 61.878(1)(a), (h), and (i), Ms. Harris explained:
Our November 22nd response to Mr. Todd stated that the "University's investigation relating to the referenced complaint remains open"
Ms. Harris advised that even though the faculty member had resigned, that EKU continued to conduct, through its Equal Opportunity Office, an investigation of the employee's conduct. She explained:
The initial purpose of this ongoing investigation was to determine if any violation of University policies and applicable laws had occurred that would lead to an administrative adjudication by the University of the faculty member's tenure status per KRS 164.360. As acknowledged by the Register's inquiry made in advance of its Open Records request, there may be applicable statutory requirements mandating notification to various agencies which may be applicable and other investigations conducted therein. Model Laboratory School is subject to certain statutory requirements relating to teaching certificates and treatment of minors, although is not within a standard school district because it was established pursuant to KRS 164.380. Specifically, the applicable requirements are: (1) KRS 161.120, Disciplinary actions relating to [teaching] certificates - Appeals; (2) KRS 620.020, Duty to report dependency, neglect or abuse; and (3) KRS 620.040, Duties of prosecutor, police, and cabinet - Prohibition as to school personnel - Multidisciplinary teams.
In particular, KRS 161.120(2)(a) requires that:
Additionally, KRS 161.120[2](b) requires:
The requirements of KRS 620.030(1) are that:
The University's investigation thus was not solely related to the employment status of the faculty member but continued beyond the employee's resignation to determine whether information was required to be reported to law enforcement or licensing bodies.
Pursuant to KRS 61.880(2)(c), we asked that EKU provide additional information and documentation relative to its position that the investigation was ongoing and that disclosure of the identification and requested records would harmful to the ongoing investigations of EKU and those that may be conducted by other agencies.
By letter dated February 2, 2007, Ms. Harris, on behalf of EKU, provided a response to our request for additional information, stating, in part:
The University position that it meets the three-part test set forth in 05-ORD-168 in invoking KRS 61.878(1)(h). The University's investigation was on-going at the time of the request. The documents we are providing with this correspondence to the Attorney General's Office include documentation relating to communications between the University and other agencies regarding the University's investigation into the complaint and the commencement of an administrative adjudication action by another agency. The requested documents were compiled in the process of determining and investigating possible violations of University policies and additionally for possible statutory and/or regulatory violations.
Additionally, while the identities of individuals other than the employee may be exempt from disclosure pursuant to KRS 61.878(1)(k) and (l), the premature release of the requested records could potentially reveal the identity of individuals relevant to the investigation who may not have yet been contacted regarding this matter. This identification is possible because of the very content of these materials that would not be redacted pursuant to a specific exemption. While we do not believe the Richmond Register would intentionally take any action to impede an on-going investigation, any reporting of the underlying issues of the complaint may also alert individuals whose cooperation may be needed in the investigation. This may result in witnesses being less cooperative and possibly in such actions as witnesses removing and/or destroying evidence and in hampering the efforts of the other agency(ies), As we noted in our January 11, 2007, response to the Register's appeal, our partial denial was intended to help preserve the integrity of its investigation and any investigation undertaken by another agency(ies); there is no intent to use this exception to "delay or impede the exercise of rights granted by KRS 61.870 to 61.884." It is imperative to any investigation of this nature that confidentiality be maintained to the extent possible so that individuals are not inhibited in coming forward with concerns or do not engage in activities that hinder an investigation.
Our review of the records provided to this office by EKU indicates that the University received an anonymous telephone call stating that a faculty member had engaged in inappropriate e-mail communications with students. As explained by EKU, the purpose of the investigation was two-fold. The first purpose of the investigation was to determine if any violation of University policies had occurred that would lead to an administrative adjudication by EKU of the faculty member's tenure status. The second purpose was to discharge its statutory duties by determining all the facts surrounding the faculty member's improper conduct and providing a written report to the Education Professional Standards Board (as required by KRS 161.120) and to the Cabinet for Health and Family Services (as required by KRS 620.030). After receipt of the complaint, EKU's Equal Opportunity Office initiated an investigation regarding possible violations of the University's Sexual Harassment Policy and its Code of Ethics for Computing and Communication. Subsequently, on November 9, 2007, the faculty member resigned. However, the second part of EKU's investigation continued beyond the employee's resignation to determine whether a report of his conduct was statutorily required to be reported to law enforcement or licensing bodies. On November 20, 2007, EKU, in accordance with statutory requirements mandating notification to various state agencies, EKU notified and sent a report of the matter to the Education Professional Standards Board, pursuant to KRS 161.020 (disciplinary action relating to teaching certificates) and notified the Cabinet for Heath and Family Services, pursuant to KRS 620.030 (relating to the reporting of abuse of minors, since the matter involved high school students under the age of eighteen). 1 EKU advised the Education Professional Standards Board that documents relating to its investigation were not provided at that time, given the identifiable student information contained therein under the Family Educational Rights and Privacy Act (FERPA). By letter dated December 4, 2006, the Education Professional Standards Board acknowledged receipt of EKU's notice and report concerning the faculty member and advised EKU that it was initiating a disciplinary proceeding against the faculty member based on the information in EKU's report and asked for redacted copies of the investigative documents referenced in the report. On December 12, 2006, Education Professional Standards Board advised EKU that a summary of reports, rebuttal, and other information from the investigation would be presented to the Board and the University would be advised of the Board's action at a later date.
For the reasons that follow, we conclude that EKU properly relied upon KRS 61.878(1)(h) 2 in its partial denial of the Richmond Register's request for documents and materials relating to the University's investigation of the referenced complaint, which was ongoing at the time of the request.
KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.] . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In order to successfully raise this exception, a public agency must satisfy a three-part test. 05-ORD-259. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or an administrative adjudication.
Clearly EKU is an agency involved in an administrative adjudication, subject to the operation of KRS 61.878(1)(h), thus satisfying the first part of the test. Moreover, EKU establishes that the disputed records were compiled in the process of investigating statutory violations and therefore satisfies the second part of the test. "This language," the Attorney General has observed, "has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident and incidents involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action." 97-ORD-129, p. 4. Finally, EKU demonstrates that premature disclosure of the investigative records at issue would harm its investigation that continued, even after the faculty member's resignation, in order to determine if the matter should be referred to and a report prepared for the Education Professional Standards Board or to the Cabinet for Health and Family Services. EKU explained that its ongoing investigation would be harmed by revealing the identity of individuals relevant to the investigation who may not have yet been contacted regarding the matter; that premature release of the records would impede the ongoing investigation by alerting individuals whose cooperation may be needed; may result in witnesses being less cooperative; and the possibility that some witnesses removing or destroying evidence and in hampering the efforts of other agencies. Accordingly, having articulated the basis for denial in terms of the requirements of KRS 61.878(1)(h), we affirm the EKU's partial denial of Richmond Register's request for investigative records and information concerning the complaint against the faculty member as its investigation of the matter was still ongoing at the time of the request.
Because the foregoing is dispositive of this appeal, we need not address other bases relied upon by EKU in support of its partial denial of the request.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Jim Todd, Editor
Cheryl K. HarrisEastern Kentucky University205 Coates Building, Coates CPO 40A521 Lancaster AvenueRichmond, KY 40475-3102
Footnotes
Footnotes
1 EKU provided documentation that it formally notified the Cabinet via telephone call on November 2, 2006, to the Madison County Community Based Services to report the faculty member for sending inappropriate e-mails to high school students and further advised that the faculty member was suspended from duties pending further investigation. The Cabinet agency advised that it would not do anything further unless EKU sent them the e-mails. The record before us does not indicate the status of the Cabinet's investigation or actions, if any.
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2 We assess the propriety of the agency's denial on the date the denial was issued. 06-ORD-260. Although the faculty member resigned on November 9, 2007, EKU's investigation continued beyond the employee's resignation to determine whether information was statutorily required to be reported to law enforcement or licensing bodies. Thus, the investigation was still ongoing at the time of Mr. Todd's request.
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