NOT TO BE PUBLISHED
August 17, 1994
IN RE: Elizabeth Carswell/Madison County Board of Education
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Ms. Elizabeth Carswell in connection with her attempts to secure copies of documents from the Madison County Board of Education.
In a letter to the superintendent of schools, Mr. Shannon Johnson, dated June 18, 1994, Ms. Carswell asked to inspect the personnel files of two teachers. The material requested was as follows:
For Linda Dickerson I want to see her resume, her attendance record for the last 10 years, how many years she was at Bellview, and at Mayfield, all materials written by parents concerning her behavior from Bellview, Mayfield, and White Hall, all Conferences that she has attended since assigned to White Hall, her documented absentee record, and her plan sheet for the week.
For Donna Miracle, any letters from other parents concerning her behavior and the Transformation Plan Survey from Kit Carson and White Hall. In other words, the complete file on both women with the exception of what might be against the law for me to see.
In a letter to this office, dated June 21, 1994, and received June 23, 1994, Ms. Carswell referred to her request to
the superintendent. She apparently had not received anything from the school system as of the date of her letter.
Superintendent Johnson, in a letter to Mrs. Carswell, dated June 22, 1994, advised that the items sought relative to parental complaints involve privacy interests. He stated that no action with respect to the teachers involved has been taken nor is any action contemplated. Mr. Johnson was of the opinion that records of parental complaints have been made confidential and thus exempt from inspection by the public. In regard to the other materials Mr. Johnson concluded as follows:
Copies of the employees' application (there are no resumes), attendance record and certification will be available Monday through Friday at the Madison County Board of Education from 9:00 A.M. until 3:00 P.M.
Conference records and lesson plan sheets are not filed by this office.
Other documents have been received and considered by this office. They include a letter from Ms. Carswell to Mr. Johnson, dated June 27, 1994, in which she said that on June 24, 1994 she came to the school system's office and received two folders which contained in part a copy of Mr. Johnson's letter to her, dated June 22, 1994. Ms. Carswell was dissatisfied with the information which she had been provided.
Mr. Johnson sent Ms. Carswell a letter dated June 29, 1994, which he said was in response to her letter delivered to him on June 21, 1994, and her call to him on June 24, 1994. He referred to his previous letter stating what would be made available and what would be withheld.
Ms. Carswell sent Mr. Johnson a letter dated July 5, 1994. She said that Mr. Johnson had not sent his letter to her but that she saw it in a file folder at the school. She also said that attendance records were not made available and that the school would not make copies from original records.
This office received a letter from Ms. Carswell, dated July 25, 1994, in which she said in part that Mr. Johnson did not send her a letter dated June 22, 1994. She has requested that this office determine whether Mr. Johnson properly responded when he left copies of the letters in personnel
folders. She also asked about attendance records and whether she is entitled to obtain copies of records she requested to inspect.
The final document examined by this office is a letter to this office from Mr. Johnson, dated August 3, 1994. He said in part that since Ms. Carswell was coming to the school system's offices to inspect records he left copies of his letter of June 22, 1994 in a "prepared folder" and not the teacher's permanent folder, rather than mailing the letters to Ms. Carswell. Mr. Johnson said he furnished Ms. Carswell with "an abstract summary of both employees' attendance records," apparently, because the original records of teachers' attendance had other teachers' names on them. He also stated that he has furnished copies of conference requests pertaining to Linda Dickerson once he understood exactly what she was requesting.
In connection with an appeal under the Open Records Act, the function of the Attorney General, as stated in KRS 61.880(2), is to issue a written decision stating whether the public agency violated the terms and provisions of that Act. Procedural matters are of concern as are decisions by a public agency not to release records. This office, generally, is not concerned with what has been released.
One of the issues presented by this appeal is whether the public agency violated the Act by not sending its response to the requesting party.
KRS 61.880(1) provides in part that the public agency "shall notify in writing the person making the request." Normally the public agency would be expected to mail its written response as that would probably be the cheapest and most expedient way to convey its written decision to the requestor.
Mailing, however, is not required as the means of conveying the public agency's decision. In this particular situation the requestor had, by telephone, made arrangements to come to the offices of the public agency to inspect records so the public agency left its written decision in the folders of materials to be inspected. The public agency is required to prepare its written response within three business days of the receipt of the request no matter what method it selects to communicate that response to the requesting party.
The public agency did not violate the Open Records Act when, rather than mailing its written response, it left that response in a folder of materials which the requesting party had made arrangements by telephone to inspect on a day certain.
Another issue concerns Ms. Carswell's request that she be given access to "the complete [personnel] file on both women with the exception of what might be against the law for me to see."
This office has consistently stated that blanket requests for information on a subject without specifying certain documents need not be honored. See OAG 92-85, copy enclosed. This is particularly true where a personnel file is involved as it normally contains a mixture of material subject to inspection and material which may be withheld from inspection. See 94-ORD-54, copy enclosed.
The public agency did not violate the Open Records Act to the extent it concluded that the requesting party is not entitled to all material in a teacher's personnel folder and that the requesting party must describe with some specificity the documents she desires to inspect.
Another issue involved here concerns the requesting party's right to attendance records and her right to have copies of those original records.
In OAG 91-176, copy enclosed, at pages 3-4, this office said in part:
With respect to Mrs. Maysey's request for access to "attendance records," we conclude that the school system erroneously withheld these documents. We have previously recognized that teachers, as public employees, are only entitled to compensation for services rendered. Attendance sheets verify that such employees were present and on the job during any particular time period, and are not protected by the privacy exemption.
KRS 61.874(1) states in part:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
While this particular statutory subsection does authorize a public agency to require a written request for copies, there is no three day response period in this provision. In addition, in 94-ORD-47, copy enclosed, we said that after a person inspects records that person is entitled to copies of the record. "The right to copies of public records is thus correlative to the right to inspect those records." Also, in 93-ORD-93, copy enclosed, this office said that under KRS 61.874(1) and other sections of the Open Records Act a person is guaranteed the right to obtain copies of public records. Thus, while a public agency may require a written request for copies of documents, that device cannot be utilized to delay a legitimate request as it is a mere formality and something done only for the agency's convenience.
The public agency violated the Open Records Act when it refused to permit a person to inspect the originals of the attendance records of teachers. It further violated the Act by refusing to make copies of those original records and it violated the Act to the extent that it utilized a requirement for a written request to make copies to delay, impede or hinder the making of those copies.
The final issue presented by this appeal concerns the availability of the complaints made by parents against particular teachers.
The school system cited in part the privacy exception to public inspection (KRS 61.878(1)(a)) to support its denial of the requested documents. It also said that no action had been taken against the teachers who were the subjects of the complaints. In 94-ORD-27, copy enclosed, at page five, this office, in dealing with a complaint made against a public official, said in part:
While the letter includes opinions and recommendations, it is clearly intended to
serve as a complaint. It contains charges against the Institutional Parole Officer, and proposes remedial action. The fact that the Department concluded that there was no basis for action against the Institutional Parole Officer has no bearing on whether the correspondence/complaint must be released. In our view, the records are not exempt from disclosure pursuant to KRS 61.878(1)(i).
Finally, in 94-ORD-76, copy enclosed, at page six, this office stated in part:
It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct.
The public agency violated the Open Records Act when it refused to make available for public inspection the complaints made against specifically named teachers.
Either Ms. Carswell or the Madison County Board of Education or both of them may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but he should not be named as a party in that action or in any subsequent proceedings under the Open Records Act.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
301 Jeremiah Drive
Richmond, KY 40475
Madison County Board of Education
P.O. Box 768
Richmond, KY 40476-0768