Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Education Professional Standards Board properly relied on KRS 61.878(1)(h), (i), and (l), the latter exemption incorporating CR 26.02(3)(a), in denying Dennis F. Janes' April 14, 2011, request for copies of "all of your records that disclose the 'content of a number of the text messages that you have 'recovered' and to which you referred on the second page of your March 28 letter, as well as the dates and times of each such message. " Mr. Janes represents a teacher against whom a report of excessive and inappropriate texting with a student was filed. The Board's review of that report resulted in the decision to hear the case and assign it to one of its prosecuting attorneys, Cassie Trueblood, the "you" referenced in Mr. Janes' request. Pursuant to KRS 61.878(3), Mr. Janes' client would be entitled to disclosure of the records relating to her, 1 even if those records were statutorily exempt as to the public generally, were she not the subject of an ongoing investigation by the Board. Because the Board's investigation is not concluded until it takes final action in this matter, KRS 61.878(1)(h), (i), (l) and CR 26.02(3)(a) preclude her from accessing the requested records to the same extent the public is precluded from accessing them.
On appeal, Mr. Janes acknowledged that earlier in the year the Board provided him with "the same supporting documentation that had been provided to [his client] in 2010, when the Board first notified her of its inquiry," 2 but expressed a desire to access the text messages recovered by Ms. Trueblood in the course of her "own investigation." That investigation apparently prompted her to extend an offer of settlement to his client on March 9. In her March 9 letter, Mr. Janes emphasized, Ms. Trueblood indicated that she had "completed [her] investigation." He expressed the view that this statement was inconsistent with the Board's current position that the investigation is ongoing.
In supplemental correspondence directed to this office, the Board explained that "[c]ases to be heard are pending matters until the Board issues a final order in the matter," and the access to pending disciplinary records is generally denied on the basis of KRS 61.878(1)(h). Continuing the Board observed:
Once the matter is final, i.e. the Board has issued a finality order, the staff will release the official agency record of the action to any requesting party. Although staff does not release pending case records to the public at large, the responder in the case and his or her attorney is privy to the agency's official file in order to defend against the allegations. The prosecuting attorney keeps a separate investigative file that is filled with "preliminary drafts, notes, [and] correspondence with private individuals . . . ." KRS 61.878(1)(i). The information contained in the investigative file may include witness notes, questionable admissible evidence and documents, and other unsubstantiated information that an attorney collects in preparation for a hearing . . . . In addition, the prosecuting attorney's files are usually filled with attorney work product as defined by CR 26.02(3)(a) . . . .
Mr. Janes' request focuses not on the Board's official file, the Board asserted, but on the prosecuting attorney's file, access to which is restricted by KRS 61.878(1)(h) , (i), and (l). With reference to the alleged inconsistency identified by Mr. Janes, the Board noted that although "Ms. Trueblood's investigation in preparation for a potential administrative hearing may be concluded, . . . the Board's investigation is not concluded until the matter is presented to them again for final action, " a triggering event that has not yet occurred.
We agree with the Board's analysis of the legal issue presented: Whether a public employee who is the subject of an ongoing investigation into alleged misconduct is entitled to access portions of the prosecuting attorney's investigative file before final action is taken on the allegations. We believe this question must be answered in the negative. KRS 61.878(3) 3 invests public agency employees with the right to inspect and copy "any record including preliminary and other supporting documentation that relates to [them]" regardless of whether the records are statutorily exempt from public inspection. It has been deemed the "exception to the exceptions" insofar as it affords public agency employees a broader right of access to records relating to them than the public's right of access. 93-ORD-19; 97-ORD-87; 97-ORD-152. "When applicable," this office has opined:
KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exception of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency.
97-ORD-87, p. 4 (emphasis added) citing 96-ORD-27. In a line of open records decisions, this office has recognized that "[a]lthough as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee [to whom the records relate], where the employee is under investigation, and the documents relate to that investigation, the request can properly be denied." 96-ORD-27. Mr. Janes' client is a public agency employee under investigation by the Board for alleged misconduct. She therefore stands in the same shoes as the public vis-a-vis her right of access to public records relating to the investigation under the Open Records Act. Because the Board has not taken final action in her case, she is precluded from inspecting or copying investigative records by virtue of KRS 61.878(1)(h) and (i).
We concur with the Board in the view that although Ms. Trueblood's investigation in preparation for a possible hearing is concluded, the investigation into the alleged misconduct of Mr. Janes' client is not concluded until the Board takes final action. Thus, in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982), the court determined that records compiled by an investigative unit within a police department for submission to the department's chief/final decision-maker were shielded from disclosure by KRS 61.878(1)(i) and (j) 4 unless adopted by the chief "as part of his final action. " The unit itself "ha[d] no independent authority to issue a binding decision" and "[i]ts information [w]as submitted for review to the chief who alone determine[d] what final action [was] to be taken." Id. "Perforce although at this point the work of [the investigative unit was] final as to its own role, it remain[ed] preliminary to the chief's final decision unless adopted by the chief." Id. Although the analogy is imperfect, Ms. Trueblood's role can be likened to that of the investigative unit and the Board's role to that of the chief/final decision-maker.
In Skaggs v. Redford, 844 S.W.2d 389, (Ky. 1992), the Supreme Court rejected the requester's argument that although the prosecutor's file was exempt under KRS 61.878(1)(h) 5 while prosecution was pending, once prosecution was completed the prosecutor's file was an open record. 6 The Court reasoned that KRS 61.878(1)(h), along with the other exemptions, "should be construed in a manner sufficiently broad to protect a legitimate state interest, and the state's interest in prosecuting the appellant is not terminated until his sentence has been carried out." Skaggs , at 390. 7 Applying this logic to the facts of this appeal, we find that KRS 61.878(1)(h) extends protection to Ms. Trueblood's file until after the Board takes final action in Mr. Janes' client's case. At that juncture, Ms. Trueblood's work product, consisting of her mental impressions, conclusions, opinions, and legal theories, remain exempt under the rule announced in Hahn v. University of Louisville. Above at note 1; accord, Skaggs v. Redford at 390. The state's interest in regulating the teaching profession and insuring that teachers, as "public servants[,] are indeed serving the public," 8 is not terminated when the prosecutor's investigation is concluded, but when the prosecution is concluded.
We are aware that in 95-ORD-97 this office determined that the concluding sentence of KRS 61.878(3) did not preclude public agency employees from inspecting and copying otherwise exempt investigative records relating to them if the employees initiated the investigation, as for example, by filing a personnel action against their employing agency. In the same open records decision, we determined that the concluding sentence of KRS 61.878(3) did not preclude public agency employees from inspecting and copying otherwise exempt adjudicatory records. At page 3 of that decision, we reasoned that the term "investigation" appearing in KRS 61.878(3) was not synonymous with the term "adjudication," concluding that, "had it intended KRS 61.878(3) to apply to both the investigative and adjudicative phases of an administrative action, the legislature could have employed both terms." Id. Resolution of 95-ORD-97 did not turn on this analysis. Instead, the decision focused on the fact that the investigative records sought by the public employee were records of an investigation she initiated by filing a personnel action against her employing agency. Given the quoted language from Skaggs v. Redford , above, we now believe that we construed the term "investigation" too narrowly "to protect a legitimate state interest" in 95-ORD-97. Skaggs at 390. To the extent we failed to consider the state's interest in adjudicating, and not just investigating, complaints of public employee misconduct to their conclusion, we modify 95-ORD-97. 9 On this basis, we affirm the Education Professional Standards Board's denial of Mr. Janes' 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.
Distributed to:
Dennis F. JanesCassie L. TruebloodElisha Sneed
Footnotes
Footnotes
1 In Hahn v. University of Louisville, 80 S.W.3d 771, 775 (Ky. App., 2001), the Court of Appeals determined that KRS 61.878(1) overrides KRS 61.878(3) where the records requested by a public agency employee "pertains to civil litigation" and are "beyond discovery under the Civil Rules." To the extent the disputed materials reflect Ms. Trueblood's "mental impressions, conclusions, opinions, or legal theories" concerning this disciplinary matter, Mr. Janes' client cannot access them even after final action is taken.
2 These records are described as "Superintendent Mitchell's report to the Board."
3 KRS 61.878(3) thus provides:
No exemption in 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 any record 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 to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
4 Formerly codified as KRS 61.878(1)(g) and (h).
5 Formerly codified as KRS 61.878(1)(g).
6 We do not mean to suggest that the allegations leveled against Mr. Janes' client can be even remotely equated to the allegations leveled against Mr. Skaggs, a convicted murderer.
7 Significantly, the Court in Skaggs noted that in 1992 KRS 61.878(1)(h) was amended to afford protection to records of county and Commonwealth's Attorneys that pertain to criminal investigations or criminal investigations" "after enforcement action, including litigation, is completed or a decision is made to take no action." Ms. Trueblood is not, of course, a county or Commonwealth's attorney and her file does not, in general, enjoy permanent protection.
8 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992).
9 In Commonwealth v. Chestnut, 250 S.W.3d 6755, 663 (Ky. 2008), the Kentucky Supreme Court rejected an agency's request that it require the Attorney General to perpetuate an erroneous interpretation of the law. The Court recognized that this office "was permitted to reexamine - and even reject - its former interpretation of the law."