Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Board of Education of Spencer County violated the Open Records Act in the disposition of Lawrence Trageser's January 7, 2014, request for records relating to a former employee. For the reasons that follow, we find no violation of the Act.
In his January 7 request, Mr. Trageser wrote the following:
Comes the Petitioner seeking any & all records reflecting the personnel file of former S.C.S.T. Ricky Jewell. The personnel file should include those documents pertaining to his firing, resignation or legal proceedings initiated by S.C.P.S., involving possible sexual misconduct and or unethical behavior while on duty. Petitioner is also seeking any documents relating to the professional standards board, that may have been in[i]tiated by S.C.P.S. or that may have been sent to S.C.P.S. from that board relating to the above matter.
On January 10, 2014, Board attorney Grant R. Chenoweth responded that 40 pages of material were being made available to Mr. Trageser, but certain materials were being redacted or withheld on the basis of personal privacy under KRS 61.878(1)(a), including references to home address, home telephone number, date of birth, social security number, medical information and similar private information, records relating to taxes, insurance policies and beneficiaries, retirement plans, sick and disability leave, unemployment insurance documentation, academic transcripts, requests for employment verification, and performance evaluations, as well as any criminal background checks pursuant to 28 U.S.C. § 534 and KRS 17.150(4) as incorporated into the Open Records Act by KRS 61.878(k) and (l). These redactions do not appear to be in controversy in this appeal.
Mr. Chenoweth additionally stated:
Your request specifically relating to Mr. Jewell's "firing, resignation, or legal proceedings. .." is denied as no such records were found in his personnel file. Your request for documents relating to the professional standards board is denied as no such records were found in his personnel file other than those which may relate to his progress toward certification which are included in the records available for your inspection.
Mr. Trageser's appeal to the Attorney General was received March 27, 2014. He complains that these records should have been present in Mr. Jewell's personnel file and "represents his belief, that the requested documents were intentionally taken out of the file or never placed in the file to prevent said files from ever becoming public." Mr. Trageser attaches copies of various records from 1991, presumably obtained from other sources, documenting that allegations were made against Mr. Jewell, the Education Professional Standards Board was notified by the superintendent, and Mr. Jewell was notified of his termination and declined to request a hearing.
Mr. Chenoweth responded to Mr. Trageser's appeal on March 31, 2014, stating as follows:
The records to which Mr. Trageser claims to have been denied access are not part of the Board of Education's files. It is the Board of Education's understanding Mr. Trageser obtained these records from the Education Professional Standards Board (EPSB). The records referenced by Mr. Trageser are subject to being destroyed by the Board of Education five (5) years after termination of employment. See Public School District Records Retention Schedule, Record Series L5343 (Personnel File) (specifically authorizing the destruction of "disciplinary actions" and "general correspondence/ memos" five (5) years after termination of employment) . It is believed all three (3) letter which Mr. Trageser has indicated were absent from Mr. Jewell's personnel file fit within this category. However, it is acknowledged that other records which remain in Mr. Jewell's file would likewise be subject to destruction, yet have not been destroyed.
(Emphasis in original.)
We find no violation of the Open Records Act because the Board properly destroyed the records pursuant to the records retention schedule. 13-ORD-024. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, the Board has explained the nonexistence of the records through reference to the records retention schedule. We therefore find no violation of the Act.
Mr. Trageser, however, raises certain questions relating to whether the records in question were properly destroyed. Although these issues do not bear directly on the Open Records Act, we shall address them because of the "essential relationship between the intent of [the Act]" and statutes relating to records management, recognized in KRS 61.8715.
The portion of the records retention schedule cited by Mr. Chenoweth authorizes the destruction of the following records five (5) years after termination of employment:
1) Employee evaluations 2) Letters of intent 3) Sign off for reading of district policies/procedures 4) Copes of transcripts 5) Copies of certification 6) Health/life insurance membership 7) Job descriptions 8) W-4 9) Copies of contracts 10) Leave records 11) Experience verification forms 12) Copies of driver's license and birth certificates 13) Resumes 14) Disciplinary action 15) General correspondence/ memos 16) Commendation
The schedule requires the following, however, to be retained for sixty (60) years from date of hire:
1) Applications for positions 2) Name 3) Last known address 4) Social security # 5) Letters of resignation 6) Starting and ending dates of employment 7) Retirement information 8) Positions held.
(Emphasis added.)
Mr. Trageser contends that one of the letters attached to his appeal, written by Richard Jewell and received by the Board on June 25, 1991, constitutes a "letter of resignation" that should have been retained for 60 years from the date of hire. In the letter, Mr. Jewell wrote in pertinent part:
This is to acknowledge receipt of your letter dated June 10, 1991. This is to advise you that although I am not guilty of the allegations, I am not requesting a hearing.
(Emphasis added.) The June 10 letter referenced by Mr. Jewell was issued to him by Billy H. Stout, Ed. D., Superintendent of Spencer County Public Schools, and began as follows:
Pursuant to KRS 161.790, this shall serve as formal notification to you of termination of your employment as a teacher with the Spencer County School System, effective immediately. The Spencer County Board of Education will be notified of this action at the June 20, 1991 Board meeting.
After explaining the charges and evidence against Mr. Jewell, Dr. Stout mentioned the possibility that Mr. Jewell might request a hearing, and then concluded:
Based upon all of the above and pursuant to KRS 161.790(1)(b), my duty as Superintendent, I have no option but to terminate your employment, effective immediately.
Mr. Chenoweth responds as follows to Mr. Trageser's argument that the letter from Mr. Jewell constituted a "letter of resignation" :
The Board of Education denies that the June 10, 1991 letter from Mr. Jewell to Dr. Stout constitutes a resignation letter. Within the letter, Mr. Jewell acknowledges receipt of a termination letter and indicates he would not request a hearing as made available to him by KRS 161.790. In the absence of an appeal, a termination letter becomes final. See KRS 161.790(3) (1990) ("upon failure of the teacher to give notice [of the intention to contest the termination] ..., the dismissal shall be final."). There is no legal basis for characterizing this letter as a resignation letter.
(Emphasis in original.) We agree with this analysis, and find no merit in Mr. Trageser's argument that a letter of dismissal for misconduct is "not a disciplinary letter." On the contrary, termination for cause is the ne plus ultra of disciplinary actions, and was recognized as such in Fankhauser v. Cobb, 163 S.W.3d 389, 397-98 (Ky. 2005):
The power to address termination and the power to address lesser sanctions are parallel and coextensive. The clear intent in including both of these powers [in KRS 161.790] is to have the tribunal decide all issues of teacher discipline, with the sole exception of private reprimands.
Thus, the notice of termination was unquestionably a disciplinary action.
Mr. Trageser, however, urges that the superintendent's June 10 letter should be considered an "ending date of employment" within the meaning of the 60-year retention schedule because it stated that Mr. Jewell's dismissal was effective immediately. Mr. Chenoweth responds that a termination letter "does not reflect the date of an employee's termination, but facially only reflects the possibility the termination will become final in ten (10) days," and only when an employee decides whether to appeal can the ending date possibly be known. Under either view, we do not believe a dismissal letter is removed from the category of "disciplinary action" merely because it contains an effective date. The letter was subject to the five-year retention period. We trust that some other record adequately documents the ending date of Mr. Jewell's employment; 1 otherwise, the date of severance from employment would presumably go undocumented for all employees who were not fired.
Mr. Trageser also argues, in essence, that because Mr. Jewell chose to waive his right to a post-termination hearing by sending a letter, instead of by simply doing nothing, it converts his firing into a resignation. We find no basis in the law for this contention. Not only is it impossible to tell whether Mr. Jewell's undated letter was received within the 10-day appeal period after delivery of the charges under KRS 161.790(3), 2 but in any case the statute does not provide an option to resign after a notice of dismissal. The dismissal remains a dismissal except in the event of a successful appeal. Therefore, Mr. Jewell's letter waiving a post-termination hearing was not a "letter of resignation" within the meaning of the records retention schedule.
Finally, Mr. Trageser argues that because some documents remain in Mr. Jewell's personnel file which could have been destroyed after five years, but were not, the Board is guilty of "selective destruction of records ? for the purpose of hiding and preventing public knowledge of wrong doing by a teacher. " Due to the age of the records, no current employees of the Board central office were employed there when the records were destroyed, and thus the agency can give no explanation as to why certain other records were retained. The fact remains, however, that the Board was at liberty to destroy the records it did pursuant to the retention schedule. "If a public agency chooses to keep public records longer than is mandated by its applicable records retention schedule, the agency must accept the ramifications of that choice." 10-ORD-084. That is, the agency must grant access to non-exempt records that remain available. In this case, it has done so. The fact that an agency may keep some records longer than required does not by itself indicate any impropriety, nor does it in any way violate the Open Records Act. Accordingly, we find no violation of the Act by the Board of Education of Spencer County in its disposition of Mr. Trageser's request, nor any clear indication of records mismanagement.
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 proceedings.
Distributed to:
Mr. Lawrence TrageserGrant R. Chenoweth, Esq.
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