Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bullitt County Public School District violated the Kentucky Open Records Act in failing to respond upon receipt of Paula L. Ratliff's request for a copy of notes taken by Susan Bibelhauser, Social Services Supervisor/Title IX Supervisor, during their meeting of March 13, 2009, regarding her "claim of harassment and bullying against a supervisor." 1 Having received no response to her e-mail dated May 25, 2009, or the "Follow up" dated June 9, 2009, aside from an e-mail dated May 27, 2009, in which Ms. Bibelhauser advised that all requests must "go through" Assistant Superintendent Becky Sexton and indicated that she would forward the request, Ms. Ratliff initiated this appeal by letter dated June 26, 2009.
Although KRS 61.872(2) authorizes the District to require submission of a written request, 2 and Ms. Ratliff directed hers to Ms. Bibelhauser via e-mail, the District essentially waived this requirement in forwarding her initial request to Ms. Sexton without further comment. Ms. Ratliff directed her "Follow up" e-mail to both Ms. Bibelhauser and Ms. Sexton, but received no response from either official, the latter being unavoidably absent. In responding to Ms. Ratliff's appeal, the District denied access entirely because "no final action has been taken" and the records are "part of an incomplete and pending matter," failing to cite a statutory exception and briefly explain how it applies to the records being withheld as required to comply with KRS 61.880(1); accordingly, the District failed to satisfy its burden of proof under KRS 61.880(2)(c) even assuming, for the sake of argument, that Ms. Ratliff was not otherwise entitled to the records in dispute.
As in 09-ORD-116, the decision resolving a separate appeal recently filed by a different former employee of the District, which is directly on point, KRS 61.878(3) is controlling here. Because Ms. Ratliff, a former employee of the District, initiated the subject investigation by filing a formal complaint, as opposed to being the subject of the investigation, KRS 61.878(3) 3 entitles her to access the investigatory records that relate 4 to her notwithstanding their preliminary nature. Inasmuch as the facts presented are, in relevant part, similar to those which culminated in 09-ORD-116, and the legal issues presented are identical, the reasoning found therein regarding application of KRS 61.880(1) and KRS 61.878(3) is hereby adopted; a copy of that decision is attached hereto and incorporated by reference. 5
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.
Paula L. RatliffKeith DavisEric Farris
Footnotes
Footnotes
1 Although Ms. Ratliff attempted to submit a new request for additional records of this nature in her appeal of June 26, 2009, any related issues are not ripe for review given that Ms. Ratliff did not comply with KRS 61.880(1) by first affording the District a chance to respond to a written request for those records, and is now unable to comply with KRS 61.880(2)(a) by providing this office with a copy of her written request and the agency's written denial, if any. See 40 KAR 1:030, Section 1.
2 KRS 61.872 (2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 Resolution of the instant appeal turns upon the language of KRS 61.878(3), which provides:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy and records including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible, shall not have the right to inspect or copy any examination or documents relating to ongoing criminal or administrative investigations by an agency.
4 In 05-ORD-181, this office interpreted "relates," for purposes of KRS 61.878(3), as follows:
The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary, 1173 (4th ed.), and does not always require a specific reference in the form of a name. To the extent that the contents of the [records] relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it.
Id., p. 7.
5 A copy of 97-ORD-87 (recognizing that KRS 61.878(3) extends to former public employees) is attached; likewise, a copy of 95-ORD-97 (recognizing that concluding sentence of KRS 61.878(3) does not encompass documents relating to ongoing investigations initiated by the public employee) is attached.