Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education Professional Standards Board ("EPSB") violated the Open Records Act in not providing a list of persons who had pending complaints filed against them. We find that the EPSB did not violate the Open Records Act in not providing a list of persons who had pending complaints filed against them.
Background
Craig Henry PLC ("Craig Henry") submitted an Open Records Request to the EPSB on Feb. 2, 2015. Craig Henry requested "the name and address of each teacher that has been advised that a complaint, charge, or allegation has been lodged against him/her with the Education Professional Standards Board between January 1, 2015 and the date of receipt of this request." EPSB responded on Feb. 18, 2015, 1 stating that "we are unable to release the requested records, or any other pending case information, pursuant to KRS 61.878(1)(h)(l) [sic]." Craig Henry responded on Mar. 2, 2015, arguing that:
The cited exemption only prohibits disclosure of the requested information if releasing the information will harm the agency because it (1) results in disclosure of an unknown informant or (2) it will result in the premature release of information to be used in an administrative adjudication. I don't think that releasing only the name and address of the individual will cause harm to the agency because the information we seek is not information that will be relied upon by the Board in a hearing.
Craig Henry concluded the letter by inviting the EPSB to reconsider its decision.
EPSB responded on Mar. 6, 2015, stating that :
Pursuant to KRS 61.878(1)(a),(h),(i) & (l), the records which you are requesting relate to confidential matters which would be under investigation. Any findings would be preliminary and we cannot release the names until these matters are final/final [sic] as we do not release the names of individuals involved in pending/active cases. Pursuant to KRS 161.120(5)(b) these educators would have the right to keep these matters private. The EPSB would never release their addresses pursuant to KRS 61.878(1) (a) & (k). However, if there is a specific educator for which you have inquiry as to whether an open case exists we would be happy to assist with this matter.
Craig Henry initiated this appeal on Mar. 19, 2015. Craig Henry argued that:
the information sought -- names and addresses -- does not create a risk of harm to the agency because it does not seek information regarding informants and does not require the release of information to be used in the adjudication. Exception (l) exempts information that cannot be disclosed due to an act of the General Assembly. The EPSB later indicated that it relies upon KRS § 161.120(5)(b) to support this exemption. KRS § 161.120(5)(b) gives a teacher the right to a private or public hearing on charges against him, at his sole discretion. This provision does not implicate the provision of the teacher's name and address in response to an open records request. . . .
On March 6, the agency provided a supplemental response that identified as additional bases for its denial of the request including KRS § 61.878(1)(a), and (i). . . . KRS 61.878(1)(a) excludes records that include "information of a personal nature where the public disclosure thereof would constituted [sic] a clearly unwarranted invasion of personal privacy. " The information sought is limited to name and address, not the nature of the allegations against the individual or any such personal information that might constitute a "clearly unwarranted invasion of personal privacy. " Exemption (i) address [sic] drafts, notes and correspondence, none of which are implicated by the request.
The exemptions relied upon by the EPSB may, arguably, provide some level of privacy with respect to the nature of the complaint made against the teacher or the identification of the complaining party. However, we do not believe that they prohibit the release of the teacher's name and address.
EPSB responded to the appeal on Mar. 27, 2015, arguing that:
It should be noted that no such record currently exists; however, the EPSB did not deny the records request on that basis. Initially, the EPSB records custodian . . . denied the request pursuant to KRS 61.878(1)(h), since Ms. Henry was requesting agency records the EPSB does not release records regarding pending administrative adjudications. . . . At this point in the process, no final agency action has been taken by the EPSB.
. . . .
The educators whose names are requested are individuals that have merely been reported to the EPSB with allegations of misconduct. The EPSB has sent these individuals preliminary correspondence advising them that a report of misconduct has been received by the EPSB and given them time to respond to the allegations. There has been no formal adjudication or final action by the EPSB regarding the report. . . .
The EPSB regularly discloses records regarding matters that the EPSB has issued a final action, but these matters are at the preliminary stage of review. . . . The EPSB believes that at least until final agency action occurs, an educator has a significant privacy interest to keep the fact his or her conduct is under review private.
. . . Additionally, KRS 161.120(5)(b) gives the educator the statutory right to determine whether a hearing in a certification action should be public or private. Although, that statutory right alone may not create a privacy interest, for the EPSB to simply release a list of names of individuals that it may potentially take action against could unduly inhibit the educators [sic] ability to collect evidence for their defense and to continue in their currently assigned positions.
. . . The EPSB believes that it would be an unwarranted invasion of personal privacy to simply release a list of names of individuals who have pending complaints before the EPSB pursuant to KRS 61.878(1)(a). Additionally, these are preliminary matters and the actual documents describing the complaints are exempt from release under KRS 61.878(1) (h) and (i). Finally, even if the EPSB has to disclose the names of these individuals, the individual's home addresses should not be released as that is an unwarranted invasion of privacy under KRS 61.878(1)(a).
Analysis
We begin by noting that the request is for "the name and address of each teacher that has been advised that a complaint, charge, or allegation has been lodged against him/her with the Education Professional Standards Board between January 1, 2015 and the date of receipt of this request." As the request is framed, it is a request for information, specifically, the names and addresses of teachers that are the subject of complaints filed between Jan. 1 and Feb. 2, 2015. "Requests for information, as opposed to records, are outside the scope of the open records provisions. . . . Public agencies are not statutorily obligated under the Open Records Act to honor requests for information as opposed to requests for public records." 14-ORD-188. It is perhaps for that reason that EPSB stated that "no such record currently exists," as there may be no specific record containing exactly the information requested, although perhaps portions of some record or records do. However, EPSB does not invoke those grounds to justify its denial of inspection, and in the interest of conclusively resolving the dispute between the parties, we proceed to the substantive issues in the appeal.
KRS 61.878(i) exempts from the Open Records Act, "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." Complaints initiating investigations by administrative agencies are preliminary documents until final action is taken by an agency. "A complaint, initiating or charging document, or any other document that spawns an investigation may be withheld until the investigation is concluded and final action taken, including a decision to take no action." 06-ORD-268; 05-ORD-005; see also 08-ORD-079 ("Although they are preliminary documents within the meaning of KRS 61.878(1)(i) and (j) until final action is taken, complaints forfeit that protection when the matters complained of are resolved."). However, "once final action is taken by the Board, the initial complaints must be subject to public scrutiny. " Kentucky State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. Ct. App. 1983).
Here, the requester does not seek the complaints themselves, but only the names and addresses of those subject to pending complaints. However, the distinction does not affect the analysis, as "it is the nature of the requested records that is determinative." 07-ORD-192. The complaints themselves are exempted from the Open Records Act as preliminary documents, and were Craig Henry to request all pending complaints filed with the EPSB since Jan. 1, 2015, EPSB could properly deny the request as preliminary. Craig Henry cannot circumvent the preliminary documents exception by requesting a list of the persons named in the complaints to be compiled. "A public agency is not obligated to compile a list or create a record to satisfy an open record request." 08-ORD-019; 07-ORD-026. Accordingly, EPSB properly withheld documents containing the names and addresses of persons who are the subject of pending complaints.
Having found that the documents or information requested are shielded by the preliminary documents exemption, we briefly address the remainder of EPSB's arguments. KRS 61.878(1)(h), the law enforcement exception, exempts:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.
"The law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action." City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). EPSB does not specifically argue the concrete risk of harm in the context of the law enforcement exception, but argues generally that "for the EPSB to simply release a list of names of individuals that it may potentially take action against could unduly inhibit the educators [sic] ability to collect evidence for their defense and to continue in their currently assigned positions." The EPSB appears to argue for a blanket exemption for all individuals it may take action against, and the law enforcement exemption "does not create a blanket exclusion from the Open Record Act's disclosure provisions for all law enforcement records pertinent to a prospective law enforcement action." Id. at 856. Accordingly, EPSB did not meet its burden to demonstrate the specific and concrete showing of harm required to invoke the law enforcement exception.
Regarding KRS 161.120(5)(b), which provides that "upon request, a hearing may be public or private at the discretion of the certified employee or applicant," although it does give a teacher the statutory right to determine whether to have a private or public hearing, that does not in itself create an enduring privacy interest. In the context of KRS 161.790(6), which provides that a hearing to terminate a contract "may be public or private at the discretion of a teacher, " we have not found that to create a privacy interest. "Although the legislature has recognized a teacher's right to a private hearing on contract termination, we reject the notion that the legislature also intended to shield that teacher from public scrutiny relative to the complaints lodged against him or her and the tribunal's final action. " 08-ORD-128; 00-ORD-5; 95-ORD-47. We here apply the same reasoning to hearings involving teachers generally. KRS 161.120(5)(b) thus does not affect the determination of whether a complaint or information in it is subject to an open records request. 2
Regarding whether the request constitutes an unwarranted invasion of privacy, KRS 61.878(1)(a) exempts from the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " "The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions." Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dep't for Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). "Where the public interest is more attenuated, however, we have held that disclosure of private information was not warranted." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 86 (Ky. 2013). In Kentucky New Era , the court upheld disclosure of "the names of all adults involved in the requested records." Id. at 88. However, the court simultaneously held that "the added disclosure of the addresses, telephone numbers, social security numbers and driver's license numbers . . . would constitute a clearly unwarranted invasion of personal privacy. " Id. at 88. Similarly, in Zink v. Commonwealth, Dep't of Workers' Claims, Labor Cabinet, 902 S.W.2d 825 (Ky. Ct. App. 1994), the court held that "while the place of one's employment may not arise to a personal level, as one generally does not work in secret, other information such as . . . home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy." Id. at 828. In general, unless some other circumstances necessitate or prohibit disclosure, home addresses constitute information of a personal nature such that public disclosure would constitute a clearly unwarranted invasion of personal privacy, although work addresses do not. Accordingly, once final agency action has been taken on the complaints, the names of the subjects of the complaints may be disclosed, but other personal information such as home addresses should not be disclosed absent a compelling public interest.
In summary, the EPSB did not violate the Open Records Act in withholding the names of persons subject to pending complaints as preliminary documents. EPSB did not meet its burden to demonstrate a showing of harm in order to invoke the law enforcement exception. KRS 161.120(5)(b) does not in itself create a distinct privacy interest or exemption under the Open Records Act. Once final agency action is taken, the names of the subjects of complaints may be disclosed, but other personal information such as home addresses may not be disclosed absent a compelling public interest.
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.
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