24-ORD-216
October 4, 2024
In re: Joshua Zeller/Department of Education
Summary: The Department of Education (“the Department”) violated
the Open Records Act (“the Act”) when it partially denied a request for
records but did not indicate whether any records were being withheld,
identify any withheld records, cite an exception to the Act, or explain
how the exception applied.
Open Records Decision
On June 24, 2024, Joshua Zeller (“the Appellant”), a teacher employed by a
local school district, submitted a request to the Department for “any records and
investigation records regarding” an Education Professional Standards Board (“the
Board”) matter involving him that was dismissed without a hearing after an
investigation by the Board’s attorney. In a timely response, the Department provided
the Appellant a copy of the official case file. This appeal followed.
The Appellant claims the Department improperly withheld the attorney’s
investigative file. However, the Appellant quotes from the Department’s disposition
of a second request he submitted on June 25, 2024, in which he specifically asked for
the contents of the investigative file. To appeal a denial of a request for public records,
a complaining party must “forward to the Attorney General a copy of the written
request and a copy of the written response denying inspection.” KRS 61.880(2)(a).
Here, the Appellant provided a copy of the Department’s response to the June 25
request, but he did not provide a copy of that request. “The Attorney General shall
not consider a complaint that fails to conform [to] KRS 61.880(2), requiring the
submission of a written request to the public agency and the public agency’s written
denial, if the agency provided a denial.” 40 KAR 1:030 § 1. Because the Appellant did
not perfect his appeal as to the second request, the Office’s jurisdiction is limited to
the Department’s disposition of the June 24, 2024, request.
According to the Board’s internal procedures, a case may be referred for
attorney review and investigation when it appears the alleged conduct would warrantsanctions, if substantiated. The assigned attorney “will review the evidence contained
in the investigative case file,” “determine what additional evidence is needed to
evaluate the case,” gather “all information and evidence reasonably available,” and
recommend (a) that the case be referred for hearing, (b) that an agreed order be
approved, or (c) “that the case be dismissed for lack of evidence or insufficiency of
evidence.”1 Here, the Appellant’s original request included a specific request for
“investigation records.” Thus, the investigation file was within the scope of the
request. Furthermore, the Department admits it has not provided the investigation
file.
When a public agency receives a request to inspect records, that agency must
decide within five business days “whether to comply with the request” and notify the
requester “of its decision.” KRS 61.880(1). An agency response denying inspection of
public records must “include a statement of the specific exception authorizing the
withholding of the record and a brief explanation of how the exception applies to the
record withheld.” Id. Thus, the agency must first “actually identify the records being
withheld” and then “explain how a cited exception applies to the very records that
were identified as being withheld.” 21-ORD-168 (citing Edmondson v. Alig, 926
S.W.2d 856, 858 (Ky. App. 1996)).
On appeal, the Department explains that the investigative file contains an
“investigation memorandum” to the Board, “interviews with potential witnesses,”
“notes drafted by the attorney while reviewing the investigator’s materials, student
records obtained from the school district, and the attorney’s draft communications.”
However, the Department’s response to the request neither identified these records
nor indicated that anything was being withheld. Instead, the response merely stated,
“The documents in the possession of [the Department] which are responsive to your
request are attached.” Accordingly, the Department violated the Act when it failed to
identify the records it withheld, cite an exception under the Act justifying its decision
to withhold records, and explain how the exception applied to the specific records
withheld.2
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
1
“Procedures Relating to Board Action on an Educator’s Certification,” § 3(III)(F), available at
https://www.education.ky.gov/epsb/Documents/EPSBProcedures.pdf (last accessed October 4, 2024).
See also 16 KAR 1:030 (prescribing procedures for educator certificate surrender, revocation,
suspension, reinstatement, and reissuance).
2
In its response to the Appellant’s second request for the investigative records, the Department
invoked the attorney-client privilege and the work product doctrine. However, because the appeal was
not perfected as to the second request, the merits of the Department’s response to that request are not
ripe for determination.be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#376
Distributed to:
Thomas J. Schulz, Esq.
Haley Williams, Esq.
Todd Allen, Esq.