Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The Courier-Journal initiated this appeal by letter dated September 30, 2016, challenging the denial by the Jefferson County Public Schools ("JCPS") of Courier-Journal reporter Allison Ross's September 19, 2016, request for "access to and an electronic copy of any and all reassignment letters that were sent/delivered to a JCPS employee on Friday, Sept. 16, 2016." In a timely response per KRS 61.880(1), JCPS Open Records Coordinator Amanda Herzog advised that said records "are not final until they have been presented to the Board," quoting the language of KRS 61.878(1)(i) and (j). JCPS also quoted KRS 61.878(1)(a) , asserting that "[r]elease of preliminary suspension or reassignment letters to media outlets prior to these documents being presented to the Board and made final would be an unwarranted invasion of the personal privacy of our employees." 1
On appeal The Courier argued that "a letter that JCPS has sent to one of its employees announcing the decision to reassign that employee does not qualify" for nondisclosure under 61.878(1)(i) and (j). Because the JCPS Board "can do nothing to change or to 'finalize' a decision that has already been made final and has already been delivered to the affected employee," The Courier also maintained that JCPS is wrong to contend that such letters are properly characterized as "preliminary." Citing relevant case law establishing that "the public is entitled to know what final actions are taken by a public agency, " The Courier concluded that "the requested JCPS reassignment letters reflect final action by the JCPS superintendent. See KRS 160.380(2)(a)." 2
Upon receiving notification of Mr. Fleischaker's appeal from this office, Ms. Herzog elaborated upon the position of JCPS. In terms of context, Ms. Herzog explained:
JCPS has publicly announced that it has [undertaken] a review of past investigations that involved student injuries or alleged employee misconduct. 3 The review is of both the allegations as well as the investigations themselves. The fact that an employee's past conduct is being reviewed does not indicate that the employee acted improperly or that an employee injured a student, and the review is not confined to allegations of student injuries. During the pendency of this review, the employees who were the subject of these investigations have been reassigned to non-instructional duty. That reassignment occurred on September 16, 2016.
Ms. Herzog advised that JCPS has "declined to identify any individual staff members as being part of this review due to its status as a pending investigation." However, to date JCPS has "fulfilled all of Ms. Ross's requests for personnel documentation regarding specific individuals who she has identified by name." In her current request, Ms. Herzog observed, Ms. Ross asked JCPS "to affirmatively identify its own employees as the target of a pending investigation at a time when neither JCPS nor the employee can speak to what the results of that investigation will be."
JCPS reiterated that the "review of staff misconduct is still in process and the fact that an individual's actions are subject to review does not indicate that they acted inappropriately or caused injury to a child." While at least one staff member has been terminated as a result of the review, Ms. Herzog advised, "another staff member has been returned to his regular duties with no discipline coming as a result of the review." JCPS released information concerning both of those individuals after the review was completed and the respective final employment actions were taken. However, the review of the subject personnel actions is still ongoing. The reassignments in dispute "were made pending the results of the review. These reassignments are inherently temporary and contingent on the outcome of the review." Relying upon City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983), JCPS correctly observed that during the course of an investigation, documents relating to that investigation are considered preliminary. Because the review by JCPS is ongoing, Ms. Herzog asserted, "the reassignments made as a part of and contingent on the findings of that review are still preliminary in nature and not subject to disclosure at this time." Existing legal authority validates the agency's position.
To ensure the safety of students, JCPS removed all of these individuals from instructional duty pending the outcome of the review. However, JCPS argued that Ms. Ross's request is not simply a request for reassignment letters; rather, it essentially amounts to a request for "those individuals whose conduct is currently under review[.]" These reassignments are "preliminary in nature while the review is still pending[.]"
"Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 4 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994); Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), the "preliminary exceptions," in a variety of contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(recognizing that records "which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded under subsections [(i)] and [(j)] of the Act"); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); see 16-ORD-167.
The Kentucky Court of Appeals reaffirmed this controlling line of authority in University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(e-mails between public employees prior to a scheduled meeting that was being held to discuss a matter still under negotiation qualified were protected under KRS 61.878(1)(i) and (j) as "piecemeal disclosure along the path of the decision making process is not mandatory" and the discussions were "preliminary to resolution of the ultimate issue"); 02-ORD-18 (witness transcripts and investigative summaries fall within KRS 61.878(1)(i) and (j), "unless adopted . . . as the basis of final action" as the Attorney General is "not prepared to read into [the case law] , a distinction between records within the investigative file that the Court of Appeals did not make in [ City of Louisville ]"); 14-ORD-024. Applying the foregoing line of authority on the facts presented here, this office finds the position of JCPS persuasive as the unrefuted evidence confirms that no final disciplinary action has been taken. A requester is not permitted to "circumvent the preliminary documents exception[s]" by requesting a record(s) containing the information that is otherwise protected from disclosure. 15-ORD-069, p. 5.
In considering the question of access to public records pertaining to public employee misconduct and unfounded accusations of misconduct in different contexts, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3. See Palmer v. Driggers , above; 95-ORD-47 (rejecting the argument that KRS 161.790 permits a public agency to withhold a complaint lodged against a teacher and the final action of the tribunal notwithstanding teacher's right to a private hearing on contract termination) ; 5 compare 99-ORD-164 (school district had not taken final action and the "termination letters and all documents related to disciplinary action" maintained their preliminary status until such time as final action was taken); 15-ORD-112. However, this line of authority construing KRS 61.878(1)(i) and (j) makes it equally clear that disclosure of records pertaining to allegations of public employee misconduct or discipline is contingent on the finality of any investigation and, if applicable, resulting disciplinary proceedings; the review or investigation remains ongoing in this case and that fact is dispositive.
Relying upon City of Louisville (requiring disclosure of the final action, the complaints, and investigative materials adopted by the agency as part of its final action) , in 95-ORD-47, for example, this office held that a school board was required to provide the requester with a copy of the written charges and those documents reflecting final disposition of tribunal hearings conducted under KRS 161.790 relative to a contract termination because the tribunal's decision was final. 6 The requested letters were generated in the course of the ongoing review by JCPS of allegations made against certain employees and prior investigations. JCPS did not violate the Act in denying the request for such letters because JCPS has not taken any final action yet regarding the current investigation, i.e. , review and the letters retain their preliminary status until such time as the agency takes final action. See 07-ORD-241 (recognizing public's right of access to disciplinary records "when final disciplinary action has been taken or a decision to take no disciplinary action has been made"); 10-ORD-046.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In the interest of clarity, this office notes that in determining whether an invasion of personal privacy was "clearly unwarranted" under KRS 61.878(1)(a) in Zink v. Commonwealth, 925 S.W.2d 825 (Ky. App. 1994), the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829; 11-ORD-139. Because this office finds the agency's reliance on KRS 61.878(1)(i) and (j) was proper, additional discussion of KRS 61.878(1)(a) is unwarranted.
2 In relevant part, KRS 160.380(2)(a) provides:
All appointments, promotions, and transfers of principals, supervisors, teachers, and other public school employees shall be made only by the superintendent of schools, who shall notify the board of the action taken. . . .
However, the determinative inquiry here is whether JCPS has taken any final action regarding the underlying investigation(s) and the unrefuted evidence presented confirms that no final action has been taken regardless of whether the Superintendent or the Board is vested with such authority.
3 According to a September 16, 2016, article by Ms. Ross, a reference to which appears in the appeal, JCPS has undertaken a review of 14 past investigations dating back as far as 2005 in order to determine whether those investigations were properly conducted.
4 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
5 But see, KRS 161.151(1), pursuant to which:
All records and references relating to an allegation of a criminal offense committed by a school employee that did not lead to formal charges and all records relating to a criminal proceeding in which a school employee was found not guilty or the charges were dismissed shall be removed from the school employee's personnel file by the superintendent or the superintendent's designee in the local school district.
6 Teacher disciplinary proceedings are governed by KRS 161.790, relevant provisions of which include:
(3) No contract shall be terminated except upon notification of the board by the superintendent. Prior to notification of the board, the superintendent shall furnish the teacher with a written statement specifying in detail the charge against the teacher. The teacher may within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final.
(4) Except as provided in KRS 163.032, upon receiving the teacher's notice of his intention to answer the charge, the commissioner of education shall appoint a three (3) member tribunal . . . to conduct an administrative hearing in accordance with KRS Chapter 13B within the district. . . .
(6) The hearing may be public or private at the discretion of the teacher. At the hearing, a hearing officer appointed by the commissioner of education shall preside with authority to rule on procedural matters, but the tribunal shall be the ultimate trier of fact.
(7) . . . Provisions of KRS Chapter 13B notwithstanding, the tribunal decision shall be a final order and may be rendered on the record.
(10) As an alternative to termination of a teacher's contract, the superintendent upon notifying the board and providing written notification to the teacher of the charge may impose other sanctions, including suspension without pay, public reprimand, or private reprimand. . . .