Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Sick Leave Approval Committee ("SLAC") of the Covington Independent School District ("District") violated the Kentucky Open Records Act in partially denying the May 12, 2014, request of Larry Owen, a teacher employed by the District, for "a copy of all the 'Sick Leave Bank Usage Application' forms pertaining to me as an employee signed by members of the 'sick leave approval committee.'" Mr. Owen also requested "all of the emails and other written correspondence in which the committee discussed and voted upon my sick leave bank application." 1 In a timely written response, legal counsel for the District responded on behalf of the SLAC, advising that "copies of the sick leave bank usage applications, as well as all documents communicating the committee's final decision relative to each application" were being provided. 2 However, the agency denied the remainder of the request as "[w]ritten correspondence or emails of sick leave bank committee members generated as part of their deliberations are not personnel records of any individual employee, and they exist wholly outside of and independent of your employee file." Citing KRS 61.878(1)(a), (i), and (j), counsel further asserted that said communications "are preliminary in nature only, and the committee members have separate privacy interests in maintaining the confidentiality of their deliberations and votes."
On appeal the District further argued that SLAC is not a "public agency" for purposes of the Open Records Act. Based upon the following, this office respectfully disagrees; the SLAC, which owes its existence to Sick Leave Board Policy 03.12321, implemented under authority of KRS 161.166(7), is a "public agency" within the meaning of KRS 61.870(1)(f). 3 Inasmuch as Mr. Owen is a "public agency employee," he is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to him" under KRS 61.878(3), which overrides any of the statutory exemptions codified at KRS 61.878(1,) with limited exceptions not implicated here. 4 Accordingly, discussion of whether the records, or portions thereof could otherwise be properly withheld in accordance with KRS 61.878(1)(a), (i), and/or (j), is unwarranted.
By letter dated May 21, 2014, Dennis Janes, Kentucky Education Association Legal Services, initiated this appeal on behalf of Mr. Owen. He advised that Mr. Owen requested additional sick leave from the School Board's sick leave bank on April 16 and 29, 2014. SLAC "reportedly considered Mr. Owen's requests on April 18 and 30, 2014. Mr. Owen was notified on April 23, 2014, and May 2, 2014, that his requests were denied." Mr. Owen promptly asked Personnel Director Eric Neff the reasons for the denials; Mr. Neff advised that the "Sick Leave Bank Committee provides a yes/no response, reason for vote is not provided or required. The voting process is a simple yes or no vote." Mr. Janes included copies of the relevant correspondence in submitting the instant appeal. The instructions on the "Sick Leave Bank Usage Application" forms provide that "Sick Leave Bank members may request leave from the Sick Leave Bank in accordance with Sick Leave Board Policy 03.12321 by submitting this completed application to the Covington Board of Education personnel office ." (Original emphasis.)
Mr. Janes noted that KRS 161.155(7) authorizes Kentucky school boards to establish a sick leave bank for employees and the Covington Independent Board of Education has created a sick leave bank for its employees. Policy 03.12321, a copy of which Mr. Janes enclosed, was adopted in 1998. According to procedures "that have apparently been adopted pursuant to" said Policy, relevant portions of which Mr. Janes quoted, "some or all of the responsibility for the administration of the sick leave bank has been delegated to the elected members of the SLAC." Mr. Janes argued that his client's request "could be viewed as a request to view the 'action taken' by a 'public agency' as those phrases are defined in KRS 61.805 [the definitional section of the Open Meetings Act]." SLAC "appears to be a 'public agency, '" he continued, and the Board's legal counsel acknowledges that SLAC voted on Mr. Owen's application(s) for sick leave. Accordingly, the action(s) of the SLAC "had to be included in its official minutes and those minutes must be made available for inspection pursuant to KRS 61.835." Mr. Janes further asserted that Mr. Owen's request was based on KRS 61.884 and the members of SLAC have "no privacy interest in the performance of their public duties" nor is Mr. Owen's privacy a valid basis for depriving him of the opportunity to inspect deliberations of SLAC regarding his own applications. Disputing that communications which formed the basis for the decisions of SLAC are preliminary, Mr. Janes also correctly maintained that KRS 61.878(3) overrides KRS 61.878(1)(i) and (j) in this case.
Upon receiving notification of Mr. Janes' appeal from this office, legal counsel for the District elaborated upon its position, arguing for the first time that SLAC is not a public agency within the meaning of KRS 61.870(1). "The volunteer members of the SLAC, a communal employee-generated entity," counsel asserted, "do not constitute a 'public agency' as defined in KRS 61.870(1)." 5 Counsel maintained that the "Sick Leave Bank":
is not a state or local public government officer; not a state or local commission or authority; is not a district board; not a judicial agency or policy-making board or agency; does not derive at least twenty-five percent of funds from state or local governments; and its board is not one in which the majority of its governing body is appointed by the Covington School Board. . . . For the same reasons that employee unions, or employee credit unions do not constitute public agencies, and are not subject to Kentucky's Open Records Act, employee communal sick leave banks likewise enjoy the same protections.
When viewed in light of KRS 61.870(1)(f), the record on appeal compels a different conclusion.
The language of KRS 61.870(1)(f) mirrors that of its counterpart, KRS 61.805(2)(d), and provides that public agency means "[e]very state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act [.]" SLAC falls within the parameters of KRS 61.870(1)(f). In relevant part, KRS 161.155(7) provides that, "a district board of education may adopt a plan for a sick leave bank. . . . The sick leave bank shall be administered in accordance with a policy adopted by the board of education." 6 Under this authority, the Covington Independent School District adopted the referenced Sick Leave Bank Policy, 03.12321, which identifies the purpose of the Sick Leave Bank; namely, the "Board's intent in organizing the Certified Sick Leave Bank is to assist those employees who have suffered medical emergencies and/or prolonged illnesses beyond their control."
Under the heading of "Administration," 03.12321 provides that the "Certified Sick Leave Approval Committee (Cert.SLAC) shall consist of five (5) members; one (1) administrator, two (2) elementary teachers, and two (2) secondary teachers. " Eligible members of the Sick Leave Bank elect members of SLAC, aka Cert.SLAC. Annually, "each building director or principal shall submit to the Personnel Office . . ., a list of nominees and/or volunteers to stand for election to fill the seat/s vacated as a result of the expiration of the three (3) year term in office." SLAC elects a chair "who will maintain all necessary documents and records and report all actions to the superintendent for implementation." Approval or denial of requests for sick leave benefits shall be the responsibility of SLAC; however, members of the Sick Leave Bank may appeal SLAC decisions via the "established grievance procedure as written in the Covington Board of Education Policy Manual." Amendments to procedures governing the Sick Leave Bank approved by membership of SLAC "will be submitted to the Covington Board of Education[.]"
As the foregoing excerpts amply illustrate, in addition to having a clearly established nexus with the Board, SLAC "owes its existence to" Policy 03.12321, adopted in accordance with KRS 161.155(7). Absent legislative enactment, SLAC would not exist or have a role to play in administering the statutorily authorized Sick Leave Bank. 99-OMD-196, pp. 5-6. This office finds the following excerpt from 99-OMD-196, construing KRS 61.805(2)(d), and holding that Bell County Schools Local Facility Planning Committee was a "public agency, " equally controlling here:
KRS 61.805(2)(d) [or its counterpart, KRS 61.870(1)(f)] does not require that an agency which falls within its definitional parameters be created by ordinance or executive order, or that it be incorporated. The statute does not require that an agency function as a subcommittee of another agency, or that its members be appointed by a public agency or a public official. It does not require that another agency exercise control over it or that it be authorized to expend public funds or take final action. . . . The fact that it was not created by executive action and that it serves an advisory function does not alter our conclusion that it is a public agency. [Citations omitted.]
The expansive definition of public agency found at KRS 61.805(2)[and KRS 61.870(1)], coupled with the statement of policy found at KRS 61.800[and KRS 61.871], indicate a legislative intent to facilitate the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.805(2) [and KRS 61.870(1)] must be construed with a view to carry out the intent of the General Assembly, and there is "no reasonable basis for excluding [the SLAC] from the definition of a public agency. " Frankfort Publishing Co., Inc., v. Kentucky State University, Ky., 834 S.W.2d 681, 682 (1992).
99-OMD-196, p. 6. "Clearly," this office concluded, "the committee is a public agency within the meaning of KRS 61.805(2)(d) inasmuch as it is created pursuant to a legislative act, specifically 702 KAR 1:001." Id. Likewise, SLAC is a public agency within the meaning of KRS 61.870(1)(f) inasmuch as it was created pursuant to Policy 03.12321, adopted pursuant to KRS 161.155(7).
Resolution of this appeal otherwise turns upon the language of KRS 61.878(3), pursuant to which:
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.
(Emphasis added.) In construing this provision, the Attorney General has long recognized:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. . . . When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions 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 employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
95-ORD-97, p. 4; 98-ORD-114. 7
As a public agency employee, Mr. Owen is endowed with a broader right of access to records relating to him than the general public has to those same records. Even records which would otherwise be shielded from disclosure under KRS 61.878(1)(a), (i) and/or KRS 61.878(1)(j), as to third persons, must be made available to Mr. Owen if those records relate to him 8 as none of the specified exceptions to KRS 61.878(3) apply on the facts presented. Accordingly, the SLAC violated the Kentucky Open Records Act in denying his request for "all of the emails and other written correspondence in which the committee discussed and voted upon my sick leave bank application."
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 JanesAlvin L. GarrisonEric NeffMary Ann Stewart
Footnotes
Footnotes
1 The bottom of the application form indicates that "emails from committee members are used in lieu of signatures."
2 Any related issues are thus moot per 40 KAR 1:030, Section 6. Our decision focuses exclusively on whether the SLAC properly denied access to responsive e-mails and correspondence.
3 The SLAC arguably falls within the parameters of KRS 61.870(1)(i) and/or (j) as well; however, this office makes no finding as to application of either given our determination regarding KRS 61.870(1)(f).
4 See KRS 61.878(1)(k) and (l), neither of which is applicable.
5 Counsel relied upon Kentucky Central Life Insurance Company v. Park Broadcasting Company of Kentucky, Inc., 913 S.W.2d 330 (Ky. App. 1996) for the proposition that a four-prong test should be used, focusing on factors including "whether the entity is performing a governmental function," but such arguments were made in that case under the definitions of "public agency" codified at KRS 61.870(1)(a), (e), and (i), rather than (f).
6 KRS 161.155(8)(a) provides that, "A district board of education shall establish a sick leave program. . . ."
7 Although KRS 61.878(3) does not contain a specific reference to former public employees, the Attorney General has recognized that its expansive wording, coupled with KRS 61.871 and the rule of statutory construction codified at KRS 446.080(1), compel this result. 97-ORD-87, p. 3.
8 See 05-ORD-181 (noting that "the term 'relates' found in KRS 61.878(3), and relating to a public employee's right of access to otherwise exempt public records, is far more expansive in its scope than the term "contains a specific reference to" found in KRS 197.025(2) and restricting an inmate's right of access to public records in which his name appears. . . . The term "relate" is defined as having "connection, relation, or reference," [citation omitted], and does not always require specific references in the form of a name"); 06-ORD-014.