NOT TO BE PUBLISHED 

93-ORD-69

June 7, 1993

IN RE: Karen L. Wilson/Webster County Public Schools and

Kentucky Department of Education

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Webster County Public Schools, through its Superintendent, Mr. Jerry Ralston, and the Kentucky Department of Education, through its attorney, Ms. Florence S. Huffman, in responding to Ms. Karen L. Wilson's April 27, 1993, request to inspect materials relating to Abby Catlett which were gathered in the course of the Department's investigation of Mr. Phil Gibson, an employee of the school system. Ms. Wilson is an attorney who represents Ms. Catlett and her father, Tony Catlett, in the investigation, and her request was made under the Open Records Act.

In a letter dated April 30, 1993, Superintendent Ralston denied Ms. Wilson's request. Relying on KRS 61.878(1)(a) and KRS 61.878(1)(f), now codified and hereinafter referred to as KRS 61.878(1)(g), he explained that the Education Professional Standards Board of the Department of Education is engaged in an investigation and administrative adjudication involving Mr. Gibson, and that the requested records are "a part of the investigation . . . ." It is Mr. Ralston's position that those records are therefore excluded from the application of the Open Record Act by operation of KRS 61.878(1)(g).

Ms. Huffman did not immediately respond to Ms. Wilson's request. She indicates that she did not consider Ms. Wilson's letter an open records request until May 7, 1993, when she received a copy of Superintendent Ralston's response. Ms. Huffman immediately phoned Ms. Wilson to explain the reason for the delay, and to advise her that because the Phil Gibson investigation and adjudication had not been concluded, the requested records were not yet available for inspection. Ms. Huffman indicated that the records would probably be available in July, 1993, the date she anticipated that the revocation hearing would be final.

In her letter of appeal to this Office, Ms. Wilson questions Mr. Ralston's invocation of KRS 61.878(1)(a), relating to public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, and KRS 61.878(1)(f), relating to test questions and scoring keys. Although she states that she did not receive a written response to her request from the Department of Education, she has since acknowledged that she spoke to Ms. Huffman by phone after her appeal was filed, and that Ms. Huffman explained that the documents would not be available for inspection until the matter had been concluded pursuant to KRS 61.878(1)(g).

The issue presented in this appeal is whether the Webster County Public School and the Department of Education violated the Open Records Act by denying Ms. Wilson's request for records relating to her client, Abby Catlett, that were compiled in their investigation of Phil Gibson. For the reasons set forth below, we conclude that Superintendent Ralston and Ms. Huffman properly denied Ms. Wilson's request.

KRS 61.878(1)(g) excludes from the mandatory disclosure provisions of the Open Records Act:

This Office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded. OAG 84-178; OAG 87-23; OAG 87-26; OAG 87-62; OAG 88-31; OAG 88-36; OAG 88-69; OAG 89-13; OAG 89-18; OAG 90-72. Such documents must be made available for inspection at the conclusion of the administrative action unless they are exempted by other provisions of the Open Records Law.

The Department of Education's Education Professional Standards Board is an administrative agency, created pursuant to KRS 161.028, and is charged with the duty of issuing, renewing, suspending, and revoking teaching certificates. KRS 161.028(1)(c). The procedures for certificate revocation are set forth at KRS 161.120. The records requested by Ms. Wilson are part and parcel of the Board's investigation and enforcement action. The issue presented is, therefore, whether the Board has concluded its administrative adjudication. If the adjudication has not been concluded, the Board may properly withhold the records pursuant to KRS 61.878(1)(g).

Ms. Huffman indicates that the revocation hearing began on May 6, and was continued until May 13. She anticipates that the Board will reach a final decision in July. When that decision is reached, the Board will be obligated to release the requested records, unless they are otherwise exempt. Since the matter has not been concluded, we find that Mr. Ralston and Ms. Huffman properly denied Ms. Wilson's request under authority of KRS 61.878(1)(g). Because we believe this exception authorizes nondisclosure, we need not decide whether KRS 61.878(1)(a) is also applicable to the records withheld.

Ms. Wilson may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/683

Distributed to:

Hon. Florence S. Huffman

Education Professional Standards Board

Capital Plaza Tower

500 Mero Street

Frankfort, KY 40601

Mr. Jerry Ralston, Superintendent

Webster County Public Schools

P. O. Box 420

Dixon, KY 42409

Ms. Karen L. Wilson

Sheffer, Hoffman, Thomerson & Morton

300 First Street

Henderson, KY 42420