NOT TO BE PUBLISHED
93-ORD-92
August 5, 1993
IN RE: H. B. Elkins/Department of Education Professional
Standards Board
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Department of Education Professional Standards Board in responding to Mr. H. B. Elkins' July 9, 1993, request for copies of certain documents in the Board's custody. Those documents relate to an investigation of Robert E. Daniel, principal of Estill Springs Elementary School in Irvine, which is currently being conducted by the Professional Standards Board. Mr. Elkins, who is the Editor of the Citizen Voice & Times, indicated that as of the date of his appeal, July 20, 1993, he had received no response to his request.
On behalf of the Professional Standards Board, Dr. Roland Goddu, Executive Director, denied Mr. Elkins' request. In a letter dated July 16, 1993, but not received by Mr. Elkins until July 21, Dr. Goddu stated:
Pursuant to KRS 61.878, certain public records are exempted from inspection. The law states that records of agencies involved in administrative adjudication which are compiled in the process of detecting and investigating statutory or regulatory violations are protected. There is an investigation in process by our agency.
Dr. Goddu invited Mr. Elkins to resubmit his request "at a later date," assuring him that the Board will comply "to the extent the statute will allow."
The issue presented in this appeal is whether the Professional Standards Board violated the Open Records Act in denying Mr. Elkins' request. For the reasons set forth below, we conclude that although the Board's response was technically deficient, it properly denied Mr. Elkins' request on the grounds asserted.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
The Board's response was technically deficient insofar as it does not appear to have been issued within three days of receipt, excluding Saturdays, Sundays, and legal holidays. Moreover, although he briefly explained why the records would not be released, Dr. Goddu failed to cite the specific exception authorizing nondisclosure. We urge the Board to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the substantive issue raised in this open records appeal, we find that the Professional Standards Board properly denied Mr. Elkins' request. The subject of that request, Robert E. Daniel, is currently under investigation by the Board. Although Dr. Goddu did not cite the exception to public inspection codified at KRS 61.878(1)(g), we assume that this was the basis for his denial of Mr. Elkins' request. KRS 61.878(1)(g) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action of administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
This Office has consistently recognized that a denial of a request to inspect public records is proper while the investigation of a matter is ongoing and a determination has not yet been made as to whether legal action will be taken. OAG 87-29; OAG 88-25; OAG 88-36; OAG 89-13. When the investigation and administrative action has been completed or a decision has been made not to prosecute, KRS 61.878(1)(g) will cease to apply. The Professional Standards Board may continue to withhold the documents until that time.
Mr. Elkins and the Education Professional Standards Board may challenge this decision by initiating 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/1014
Distributed to:
Dr. Robert Goddu, Executive Secretary
Education Professional Standards Board
Kentucky Department of Education
Capital Plaza Tower
500 Mero Street
Frankfort, KY 40601
Mr. H. B. Elkins, Editor
The Citizen Voice and Times
108 Court Street
Irvine, KY 40336