10-ORD-182 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Knox County Board of Education violated the Kentucky Open Records Act in withholding information from certain records produced in response to Jason Davis' request for "copies of all records from administrator meetings with me (including the formal write ups that I signed and any notes made by staff in attendance); a copy of all my evaluations; all e-mail correspondence between me, the principal and/or you regarding the complaints against me; all e-mails with particular people; and all records contained in my school level folder maintained by the principal." In failing to issue a written response within three business days of receiving Mr. Davis' original request and provide him with access to any existing nonexempt documents, in accordance with KRS 61.880(1), the Board violated the Act from a procedural standpoint. 1 Although the Board ultimately provided Mr. Davis with all of the records in dispute, it committed a substantive violation of the Act in failing to cite any legal basis to justify its redaction of unspecified information from certain records, despite having multiple opportunities to do so, and thus failed to satisfy its burden of proof under KRS 61.880(2)(c).

Having received no written response to his April 20, 2010, request or his identical May 10, 2010, request, 2 Mr. Davis initiated this appeal, noting that his first request was directed to Superintendent Walter T. Hulett via regular mail, and his second request was directed to him via certified mail. Mr. Davis explained that he was not provided with "the school level folder kept at Knox Central as well as email correspondence, and all documents I signed off on." Upon receiving notification of Mr. Davis' appeal from this office, Mr. Hulett responded on behalf of the Board, initially observing that he received a request "from Clifford O. Wilson, David S. Hoskins Law Office, Corbin, KY 40701 for any and all personnel records for his client Jason Davis." The responsive documents were "copied and mailed on March 17, 2010." Mr. Hulett further advised that he received a request dated May 10, 2010, from Mr. Davis, "requesting the same personnel records information [sic] and that was mailed to him on May 20, 2010." In closing, Mr. Hulett observed that he "complied with all requests for information" that he received and "copied all records that are in the personnel file" but was "once again enclosing with this letter a copy of the personnel file to Mr. Davis and Charles G. Dixon, Knox County Board Attorney."

Upon receiving Mr. Hulett's July 6 letter, Mr. Davis replied "that Mr. Hulett is indeed correct in his response saying a copy of the personnel file was sent both to my lawyer, David Hoskins on March 17, and also to my address on May 20." However, Mr. Davis continued, what he specifically requested was a "copy of the contents of the school level folder at Knox Central High School kept in a filing cabinet in Tim Roark's office," a "copy of all email correspondence from my old faculty email account jason.davis@knox.kyschools.us," and a "copy of all meeting notes I signed off on that Tim Roark, Tim Melton, and Walter Hulett also signed off on." Mr. Davis noted that he was "trying to obtain these records both for my own personal records, and also to aid my lawyer in preparation for my upcoming trial on August 4."

On the same day (July 9), prior to receiving Mr. Davis' fax, the undersigned counsel asked Mr. Hulett via e-mail to please fax this office a copy of the letter, assuming there was one, that he sent on May 20, 2010, "along with the requested records in response to his May 10, 2010, request." In addition, the undersigned counsel noted that it was unclear from Mr. Hulett's response whether the Board provided Mr. Davis "with the 'notes' requested, if any exist, and the requested e-mails, if any exist," and requested that he clarify whether those records were produced. Having received no response of any kind, the undersigned counsel sent another e-mail on July 13, asking Mr. Hulett to advise this office by the next day, July 14, whether he planned to supplement his original response by addressing the previous e-mail and/or "Mr. Davis' reply to your July 6, 2010, response to his appeal."

On July 27, this office received a letter by fax from Mr. Davis in which he advised that in all of the records that he received, 3 "all student names were blotted out." Mr. Davis enclosed "one such example," and sent "a copy of all records obtained" in the mail. According to Follace Fields, his Kentucky Education Association lawyer in Lexington, Mr. Davis explained, because he was "already the teacher of these students and would have already known them, the Knox County Board of Education is in violation of FERPA," specifically 34 CFR § 99.31, pursuant to which schools may disclose education records, without consent, to certain parties, including to "school officials with a legitimate educational interest." 4 By e-mail dated July 30, 2010, the undersigned counsel asked Ms. Butler to please confirm that either the Superintendent or the Knox County Attorney 5 planned to send a written response addressing the remaining issue of whether the student names were properly withheld as the original statutory deadline for this decision was rapidly approaching. Later that day, Assistant Superintendent Kim Merida directed a letter to Mr. Davis, a copy of which Ms. Butler forwarded to this office by fax. Ms. Merida did not address the redaction issue, merely advising that a "criminal action is pending in regard to this matter in Knox Circuit Court" and the Commonwealth's Attorney "has provided all discovery along with a Bill of Particulars per Order of the Court back in November of 2009. Also, the Commonwealth['s] Attorney has advised us that he is under continuing Order to produce any additional exculpatory evidence that may become available prior to trial in that case as well as any additional evidence that has not already been provided, that may be used at the [trial] in this matter." Said evidence was apparently provided to Mr. Hoskins and the case was awaiting trial as of that date; however, this fact is not dispositive standing alone.

Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, this office recognized:

Although there is litigation in the background of an open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.

OAG 82-169, p. 2 (emphasis added). Elaborating upon this view, the Attorney General subsequently observed that "[n]o exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in progress." OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position, recognizing that requests under the Open Records Act "are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, p. 4. In the latter decision, this office clarified that such observations were not intended "to suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act in lieu of discovery; however, this office has not recognized the right of a public agency to deny access to public records in part, or in whole, on that basis alone.

In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. Citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart, above, at 863. Simply put, Mr. Davis "stands in relationship to" the Board under the Open Records Act as any other person.

Turning to the remaining issues presented, this office reminds the Board of its obligation to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 6 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." A "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " (Emphasis added.) When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).

Failing to issue any written response upon receipt of Mr. Davis' April 20 request, as the Board did here, constituted a procedural violation of the Act, specifically KRS 61.880(1), as did failing to respond within three business days to his May 10 request.

Despite having multiple opportunities, the Board also failed to cite any exception to justify its redaction of the student names from the records ultimately provided to Mr. Davis, and therefore has not satisfied its burden of proof under KRS 61.880(2)(c). As the Attorney General has consistently recognized:

While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, [or information contained therein] which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.

97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has long observed that "[a]lthough there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11.

To date, the Board has not offered any legal justification 7 for withholding the information redacted from the records ultimately provided to Mr. Davis or even specified what information was redacted. Mr. Davis clarified that matter in his July 27 letter challenging the redactions made. Bearing in mind that public agencies have the burden of proof under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that the Board violated the Act in failing to comply with KRS 61.880(1) and that its ultimate disposition of the request(s) was both substantively and procedurally deficient. Edmondson v. Alig, supra, at 858; see 97-ORD-170. Unless the Board can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n), it must release the information withheld.

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.

Jason DavisWalter T. HulettCharles G. Dixon

Footnotes

Footnotes

1 Alternatively, the Board was required to provide a detailed explanation of the cause for delay and the specific date on which the documents would be available, in accordance with KRS 61.872(5), which it did not invoke.