January 25, 1996

In re: Vincent J. Eiden/Bullitt County Public Schools


This appeal originated in a request to inspect public records submitted by Vincent J. Eiden, on behalf of his client, Drake McCarthy, to the Bullitt County Public Schools. On October 20, 1995, Mr. Eiden requested copies of “all documents and records maintained by the Bullitt County Public Schools regarding allegations of misconduct made against Mr. McCarthy during the 1994-1995 school year . . . [including] all notes and reports compiled by school district employees and attorneys in the course of investigating these allegations of misconduct.”

In a letter dated October 24, 1995, Superintendent Michael M. Eberbaugh denied Mr. Eiden's request. Relying on KRS 61.878(3), he acknowledged that Mr. McCarthy had been suspended from his teaching duties without pay, but advised Mr. Eiden that the Bullitt County Public School System's investigation into allegations against his client is ongoing. In a follow-up letter to this office, Dr. Eberbaugh elaborated on the school system's position. He stated:

Mr. Eiden's client, Drake McCarthy, was suspended without pay by notification dated August 8, 1995 . . . . [T]his step of suspension without pay is not the most severe personnel action that can be taken under KRS 161.790 — termination is also possible. Other administrative personnel are still investigating the matters outlined in the August 8, 1995 letter to Mr. McCarthy to determine whether further action is warranted. In fact, interviews of other students are scheduled to occur on Friday, November 10 at Bullitt East High School.

After completion of these interviews, if sufficient information is ascertained, further personnel action may be taken which would then constitute final action by this office.

In closing, Dr. Eberbaugh reiterated that because this matter is still pending, release of the records which Mr. Eiden seeks is precluded by KRS 61.878(3).

On appeal, Mr. Eiden maintains that the matter has been investigated and disciplinary suspension imposed. He argues that the matter is therefore concluded, rejecting the notion that “a public agency may leave its investigation open indefinitely as a means of evading the requirements of KRS 61.871, 61.872 and 61.878(3).” He urges the Attorney General to issue a decision consistent with this view.

We are asked to determine if the Bullitt County Public Schools improperly relied on KRS 61.878(3) in denying Mr. Eiden's request. For the reasons set forth below, and upon the authorities cited, we conclude that the school system's response was consistent with the Open Records Act.

KRS 61.878(3) was amended by the 1992 General Assembly, and now provides:

No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.

The provision extends, by its express terms, to all “public agency employee[s],” and overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (j), [1] with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee or on his behalf. The final sentence authorizes an agency to withhold examinations and “documents relating to ongoing criminal or administrative investigations by [the] agency” even when they are requested by the public agency employee and relate to him. Although as a rule of general application KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee, where the employee is under investigation, and the documents relate to that investigation, the request can properly be denied. [2] 95-ORD-97; compare, 93-ORD-19 and 93-ORD-24 (holding that a public agency employee is entitled to review records relating to a complaint filed by the employee with an affirmative action office).

Mr. McCarthy is a “public agency employee” within the meaning of KRS61.878(3), and may examine any record which relates to him with the exception of examinations and documents relating to ongoing criminal or administrative investigations by an agency. The records which Mr. Eiden requests on his behalf relate to an ongoing administrative investigation conducted by the Bullitt County Public Schools, and are part and parcel of that investigation and prospective action. Mr.Eiden's request was therefore properly denied pursuant to KRS 61.878(3).

Although we concur with Mr. Eiden in his view that a public agency cannot indefinitely postpone the release of records under KRS 61.878(3) by labelling an investigation ongoing, this office has recognized that it is “within the sound discretion of the . . . agency to decide when a case is active, merely inactive, or finally closed.” OAG90-143, p. 4. We have expressed our reluctance to determine “how long the [agency] could consider a case inactive before finally declaring it closed.” OAG 86-80, p. 4. Nevertheless, the burden of proof in sustaining its denial of a request for public records is on the agency, and the agency must do so with specificity. OAG 83-123; OAG 86-80; OAG 90-143. Consistent with the principle that “free and open examination of public records is in the public interest . . .,” KRS 61.871, the exemptions provided by KRS 61.878(1)(a) through (l), and specifically those that pertain to records compiled in the processing of investigating statutory or regulatory violations, “should not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.” KRS 61.878(1)(h).

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:

Michael M. Eberbaugh


Bullitt County Public Schools

1040 Highway 44 East

Shepherdsville KY 40165

Vincent J. Eiden

Segal, Isenberg, Sales,

Stewart, Cutler & Tillman

2100 Waterfront Plaza

325 West Main Street

Louisville KY 40202-4251


[1] KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law, and are not overridden by KRS 61.878(3).

[2] KRS 61.878(3) does not stand as an independent statutory basis for denial of an open records request, but is typically invoked in conjunction with KRS 61.878(1)(h), exempting “[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations . . . .”