January 23, 1996

In re: James A. Ellis/Pike County Board of Education


This matter is before the Attorney General on appeal from the Pike County Board of Education's response to Mr. James A. Ellis's open records request to inspect certain records of the Board.

Specifically, Mr. Ellis appeals that portion of the Board's response which denied his request to inspect:

The Agreement executed between the Pike County Board of Education and Martin Engineering and Construction Company regarding the termination of the Construction Management contract for Pike County Central High School Phase 3 - Gymnasium.”

On behalf of the Board, Mr. Neal Smith, Attorney, responded to Mr. Ellis's request by copying him with a memorandum to Mr. Reo Johns, Superintendent, Pike County School System, regarding the request. In his memorandum, Mr. Smith states:

I have received a copy of an open records request from Jim Ellis regarding the Release executed between the Board of Education and Martin Engineering. Insomuch as the Release contains a confidentiality provision I am reluctant to advise you to release this document to Mr. Ellis. By copy of this letter I am advising Mr. Ellis of the confidentiality provision in the Agreement and I would suggest that he try to obtain an opinion from the Attorney General's office as to the discoverability of that document under the Open Records Law. Should the Attorney General's office suggest that we should release this document to Mr. Ellis then we can certainly do so without hesitation.

It is my understanding that the Board of Education approved this Release and that it is part of the official records of the Board of Education.

In his letter of appeal, Mr. Ellis asks this office to determine the applicability of the Open Records Act to the requested document. For the reasons which follow, we conclude that the Board improperly withheld disclosure of the subject Agreement.

In OAG 83-256, we held that an agency can promise confidentiality as far as the permissive exemptions permit, and such a promise should be honored. In OAG 88-1, we held that a promise of confidentiality could be honored as long as it was not inconsistent with the provisions of the Open Records Act.

In OAG 90-7, this office opined that a contractor to a governmental agency must accept certain necessary consequences of involvement in public affairs. Such a contractor runs the risk of closer public scrutiny than might otherwise be the case.

The denial in this case does not state that the confidentiality provision of the Agreement constitutes confidential or proprietary information or is otherwise exempted by a particular provision of the Open Records Act. Moreover, the Open Records Law does not allow public records to be exempted from disclosure by contract. They must be exempt by a statutorily recognized exemption. 95-ORD-14.

In addition to the above, the Board acknowledges in its response that it approved the Release and it is part of the official records of the Board. As a part of the Board's official records it would be open for the public's inspection, particularly where no statutory authority is cited to support the withholding of the record.

Accordingly, it is the decision of this office that the Board acted inconsistently with the Open Records Act, KRS 61.870 to 61.884, when it withheld the requested record from inspection. Accordingly, the record should be made available for Mr. Ellis's inspection.

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 proceeding.






Distributed to:

James A. Ellis

927 Main Street

Shelbyville, Kentucky 40065

Neal Smith

Todd & Smith

208 Scott Avenue

Pikeville, Kentucky 41502-1079