NOT TO BE PUBLISHED 

93-ORD-74

June 14, 1993

IN RE: Dennis F. Janes/Kentucky Department of Education

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Kentucky Department of Education's partial denial of Mr. Dennis F. Janes' May 3, 1993, request for copies of "any and all writings and documents, including but not limited to any and all preliminary and other supporting documentation, pertaining to Janice Gibson that have been received by [the Learning Support Services] office . . . [and] any and all responses submitted by [that] office." Ms. Gibson is a teacher in the Webster County Public Schools, and is represented by Mr. Janes.

On behalf of the Kentucky Department of Education, Learning Support Services, Ms. Lois Adams-Rodgers responded to Mr. Janes' request on May 10, 1993. Although she provided Mr. Janes with "a copy of a public record containing reference to Janice Gibson . . . ," Ms. Adams-Rodgers withheld "one item of correspondence in which the name of Janice Gibson appears." Relying on KRS 61.878(1)(g) and (i), she maintained that disclosure of the document would result in the premature release of information which might be used in a prospective administrative adjudication.

In a followup letter to this Office, Ms. Anne Keating, an attorney attached to the Department of Education's Office of Legal Services, explained that the disputed record contains information regarding the possible violation of state school laws and regulations and was compiled by the Department in the process of detecting and investigating the violation. Ms.

Keating again asserts that KRS 61.878(1)(g) and (i) authorize the withholding of the record inasmuch as disclosure at this time could harm the Department through the premature release of information to be used in a prospective action. She acknowledges that KRS 61.878(3) mandates disclosure of records of a public agency employee when they are requested by the employee, but notes that the statute makes an exception for "examinations or any documents relating to ongoing criminal or administrative investigations by an agency." She further acknowledges that the record must be made available at the conclusion of the enforcement action or if a decision is made to take no action.

In his letter of appeal to this Office, Mr. Janes argues that KRS 61.878(3) mandates the release of the disputed record. That stature provides that none of the exceptions codified in KRS 61.878(1) "[s]hall be construed to deny, abridge, or impede the right of a public agency employee . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him." It is his position that "[a]s a 'public agency employee,' Ms. Gibson is entitled to the records that she seeks." Additionally, he argues that KRS 61.871 supports Ms. Gibson's "statutory right to review the 'one item of correspondence' withheld by Ms. Adams-Rodgers."

We are asked to determine if the Department of Education properly relied on KRS 61.878(1)(g) and (i) in partially denying Mr. Janes' request. We conclude that the Department did not violate the Open Records Act in partially denying Mr. Janes' request, and that it properly relied on KRS 61.878(1)(g), KRS 61.878(3) notwithstanding. Because we believe that KRS 61.878(1)(g) authorizes the nondisclosure of the record, we do not address the applicability of KRS 61.878(1)(i) to that record.

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

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) - (i), 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. 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).

Ms. Gibson is a "public agency employee," within the meaning of KRS 61.878(3), and may review any record which relates to her with the exception of examinations and documents relating to ongoing criminal or administrative investigations by an agency. The record which Mr. Janes requests on her behalf relates to an ongoing administrative investigation conducted by the Department of Education's Education Professional Standards Board. The Board is an administrative agency, created pursuant to KRS 161.028, which is charged with the duty of issuing, renewing, suspending, and revoking teaching certificates. The "item of correspondence" which the Department of Education elected to withhold is part and parcel of the Board's investigation and prospective action. Mr.

Janes' request was therefore properly denied pursuant to KRS 61.878(3) and the cited exception.

Mr. Janes 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

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Distributed to:

Ms. Lois Adams-Rodgers

Deputy Commissioner

Learning Support Services

Kentucky Department of Education

Capital Plaza Tower

500 Mero Street

Frankfort, KY 40601

Hon. Dennis F. Janes

Segal, Isenberg, Sales, Stewart,

Cutler & Tillman

Counselors At Law

2100 Waterfront Plaza

325 W. Main Street

Louisville, KY 40202-4251