Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Education Professional Standards Board violated the Open Records Act by denying access to records pertaining to an ongoing investigation. As set forth below, the records are preliminary under KRS 61.878(1)(i) and (j) and were properly denied.
By letter dated November 5, 2015, Tracy Shipley, made a complaint against a Kentucky educator to the Education Professional Standards Board (EPSB) and requested that the EPSB initiate an investigation regarding misconduct by the educator. Having received no response from the EPSB, Ms. Shipley made the following records request, by letter dated April 14, 2017: "Pursuant to the Kentucky Open Records Act KRS 61 et seq., and the Freedom of Information Act, I am requesting any and all information regarding the investigation and resolution of this complaint." On July 17, 2017, Lisa Lang, General Counsel, EPSB, responded to Ms. Shipley's request via email:
Based on our telephone discussion of July 17, 2017, it is my understanding you are seeking copies of the following:
1, Complaints or investigation reports relating to [Kentucky educator ] or Tracy E, Shipley; and
2. Records relating to educator misconduct cases relating to [Kentucky educator ] or Tracy E. Shipley.
To the extent you seek information and/or records relating to complaints and reports filed pursuant to KRS 161.120, please be advised that any complaints and/or reports relating to certified individuals are preliminary in nature and, therefore, exempt from disclosure pursuant to KRS 61.878(1)(g) and (h) [ sic ]. See also OAG 91-198.
As for your request for records relating to educator misconduct cases relating to [the educator] or Tracy E. Shipley, there are no records responsive. to your request.
Ms. Shipley filed an appeal of EPSB's response on August 18, 2017, and EPSB responded on August 25, 2017. In its response EPSB stated:
Ms. Shipley's allegation that the EPSB violated the Open Records Act when it failed to provide her with "any records regarding a complaint [she] made under the [the Kentucky Open Records Act and FOIA]" is without merit because reports of alleged educator misconduct are exempt from disclosure pursuant to KRS 61.878(l)(g) and (h) [ sic ]. As stated in Attorney General Opinion 7-771, reports of alleged educator misconduct are exempt from disclosure under Kentucky law because such records are preliminary in nature and do not represent "final agency action. "
When complaints and/or reports are received by the EPSB, the EPSB staff reviews the complaint and/or report to determine whether the Board has jurisdiction. If jurisdiction is established, the EPSB staff assesses the complaint and/or report to determine whether there is credible evidence that a violation has occurred. If credible evidence that a violation has occurred is established, the EPSB staff opens a case and the case is forwarded to the Board for consideration and action. If however, EPSB staff determines that the report lacks credible evidence that a violation has occurred, the EPSB staff maintains the complaint and/or report file for five years. If no additional evidence is received during that time to substantiate the allegations contained within the complaint and/or report file, the EPSB staff disposes of that file in accordance with its records retention schedule. A copy of the EPSBs Records Retention Schedule is attached.
Ms. Shipley submitted her complaint alleging educator misconduct against several certified educators in 2015. At this time, the EPSB maintains a file relating to this complaint and it is considered preliminary pending receipt of additional evidence.
Analysis . In her open records request, Ms. Shipley requested "any and all information regarding the investigation and resolution of this complaint." EPSB, most pertinently, responded that "If however, EPSB staff determines that the report lacks credible evidence that a violation has occurred, the EPSB staff maintains the complaint and/or report file for five years. If no additional evidence is received during that time to substantiate the allegations contained within the complaint and/or report file, the EPSB staff disposes of that file in accordance with its records retention schedule . . . At this time the EPSB maintains a file relating to this complaint and it is considered preliminary pending receipt of additional evidence."
We find the "preliminary records" exemptions under KRS 61.878(1)(i) and (j) to be dispositive in this appeal. KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 10-ORD-065, we found that records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and are thus exempt from public inspection, until final action is taken on the matter. 10-ORD-065 ("It is well established that records pertaining to an ongoing internal investigation by a public agency are exempt from disclosure before final action has been taken."). In this case, the EPSB has made a preliminary decision that the complaint from Ms. Shipley lacked credibility but the EPSB has not taken final agency action to dismiss the complaint. As we stated in 14-ORD-234, "[n]ot every agency action is final action. " (Interim Agreed Order temporarily suspending physician from medical practice during ongoing investigation was not final action. ). 14-ORD-234, p.3. The decision that Ms. Shipley's complaint lacked credibility is such an action; the EPSB will merely maintain the file containing the complaint for five years, rather than promptly dismissing it or taking other action. Should no other credible evidence be received by the EPSB during the five years after receipt of the complaint, dismissal of the complaint would then be final agency action and Ms. Shipley would be entitled to receive the records pertaining to the complaint.
Even the initial complaint is, at this time, not excluded from the category of preliminary records. Initiating complaints "are preliminary documents within the meaning of KRS 61.878(1)(i) and (j) until final action is taken." 02-ORD-101, p. 4. Accordingly, Ms. Shipley's complaint and any records constituting part of the investigation need not be disclosed until EPSB takes final action on the complaint.
From the record on appeal it appears that EPSB failed to timely respond to Ms. Shipley's open records request (April 14, 2017) until after the telephone conversation of July 17, 2017, between Ms. Shipley and Ms. Lang. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays ? whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6. In 15-ORD-141, we found that a four month delay in providing records subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4). In this instance the record indicates that there was an apparent three-month delay in responding to Ms. Shipley's open records request. As Ms. Shipley did not specifically appeal the EPSB's delay in denying her request, the record on appeal may be lacking in completeness and we are thus constrained from finding that EPSB subverted the intent of the act by failing to respond to Ms. Shipley's request in a timely manner. The record does support a finding that EPSB procedurally violated the Act in not responding to Ms. Shipley within the three-day period mandated by KRS 61.880(1).
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.