NOT TO BE PUBLISHED

95-ORD-47

March 22, 1995

In re: The News-Herald/Owen County School Board

OPEN RECORDS DECISION

On behalf of his clients, Mr. James Ashcraft and The News-Herald, Mr. Jon Fleischaker challenges the Owen County School Board's partial denial of Mr. Ashcraft's November 10, and November 22, 1994, requests to inspect and copy public records in the board's custody. In his November 10 letter to Dr. Freddie Clements, Mr. Ashcraft requested access to detailed billing statements for legal services submitted by the Board's attorneys since September 1, 1993. The Board responded by releasing edited copies of the attorneys' billing statements, redacting those portions of the statements which revealed the nature of the services rendered.

On November 22, Mr. Ashcraft resubmitted his request to Superintendent Bonita Burns, asking that he be afforded access to documents reflecting the final disposition of any teacher tribunal hearings conducted under KRS 161.790 between September 1, 1993, and the present. Mr. Ashcraft again asked that he be permitted to inspect and copy attorney billing statements for this period "with all information complete on them including the applicable case."

In response, Superintendent Burns stated that the Board had already fully complied with Mr. Ashcraft's request for attorney billing statements. With respect to his request for documents reflecting the disposition of teacher tribunal hearings, she argued that these documents are not subject to disclosure. Superintendent Burns explained that in one of only two cases since September, 1993, the Board disclosed "the hearing results" to Mr. Michael Bennett, a reporter for The News-Herald, after the teacher requested a public hearing pursuant to KRS 161.790(5). In the second case, the teacher requested a private hearing under the same provision. Superintendent Burns asserted that release of records relating to the closed hearing would violate the teacher's civil rights. Moreover, she maintained, the requested records are exempt pursuant to KRS 61.878(1)(a) inasmuch as they contain information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of privacy. Finally, Superintendent Burns asserted, "though the decision of the tribunal has been rendered the case is still open and under review by the Educational [sic] Professional Standards Board . . . ." It was her position that because this case is still open, records relating to it are under the Education Professional Standards Board's control.

We are asked to determine if the Owen County School Board violated the Open Records Act in partially denying Mr. Ashcraft's request. For the reasons set forth below, we conclude that the Board improperly withheld records relating to the final disposition of teacher tribunal hearings conducted under KRS 161.790, regardless of whether those hearings were public or private hearings. The Board also erred in refusing to disclose those portions of its attorneys' billing statements which generally identify the nature of the legal services rendered without revealing substantive matters, litigation strategy, or the specific nature of his services.

Neither of the issues presented in this appeal are issues of first impression. In analyzing the propriety of release of records relating to public employee discipline under KRS 61.878(1)(i) and (j), the preliminary documents exceptions, the courts and this office have consistently recognized that "[d]isciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992); OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG 89-74; OAG 91-33; OAG 91-45; OAG 91-62; OAG 91-81; OAG 91-90; OAG 92-34; 94-ORD-27. In a seminal opinion addressing the applicability of these exceptions to such records, the Kentucky Court of Appeals observed, "The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon." City of Louisville, supra at 660. Unless some other exception to public inspection applies, public agencies are obligated to disclose records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action.

Nor is disclosure of such records, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:

Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . this office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee.

OAG 91-41, p. 5. The Board of Education having failed to adduce any evidence to substantiate its claim that release of the records would constitute a clearly unwarranted invasion of personal privacy in the instant appeal, we are foreclosed from conducting a case specific analysis, and therefore conclude that disclosure of the records in this specific case would not constitute an unwarranted invasion of personal privacy.

We will not belabor this issue. Instead, we will focus on the narrow question presented in this appeal: whether the fact that these disciplinary proceedings were conducted pursuant to KRS 161.790 removes records generated prior to, and in the course of, the proceeding from the principles articulated above. As it relates to teacher tribunal hearings, KRS 161.790 provides:

(3) No contract shall be terminated except upon notification of the board by the superintendent. Prior to notification of the board, the superintendent shall furnish the teacher with a written statement specifying in detail the charge against the teacher. The teacher may within ten (10) days after receiving the charge notify the chief state school officer and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days the dismissal shall be final.

(4) Upon receiving the teacher's notice of his intention to answer the charge, the chief state school officer shall appoint a three (3) member tribunal, consisting of one (1) teacher, one (1) administrator, and one (1) lay person, none of whom reside in the district, to conduct an impartial hearing within the district. The chief state school officer shall name the chairman and set the date and time for the hearing. The hearing shall take place no less than twenty (20) days nor more than thirty (30) days after the teacher receives the statement of charges.

(5) The hearing may be public or private at the discretion of the teacher. Both parties may be represented by counsel and may require the presence of witnesses upon subpoenas issued by the chief state school officer. Each witness shall be required to take an oath or affirmation prior to testimony. The local board of education shall provide for a tape and stenographic report of the proceedings and furnish the teacher with a copy. The local board shall pay each member of the tribunal a per diem of one hundred dollars ($100) and travel expenses.

(6) Upon hearing both sides of the case, the tribunal may by a majority vote render its decision or may defer its action for not more than five (5) days.

KRS 161.790(8) establishes a right of appeal in circuit court. If, however, an appeal is not filed within thirty days following the final decision of the tribunal, "the decision shall be final."

Although KRS 161.790(5) authorizes a private hearing at the discretion of the teacher charged with misconduct, neither that provision nor any other provision of KRS 161.790 permits an agency to withhold records relating to contract termination. Absent a specific confidentiality provision in Chapter 161, the Open Records Act governs. All nonexempt public records relating to the proceedings are subject to examination "even though such examination may cause an inconvenience or embarrassment to public officials or others." KRS 61.871. Although the legislature has recognized a teacher's right to a private hearing on contract termination, we reject the notion that the legislature also intended to shield that teacher from public scrutiny relative to the complaints lodged against him or her and the tribunal's final action. Any other interpretation of Chapter 161 is contrary to the statement found in KRS 61.871, to wit, "[T]he basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest . . . ." Simply stated, we fail to see how release of these records under the Open Records Act implicates the teacher's civil rights.

Nor are we persuaded that the fact that the Education Professional Standards Board has initiated proceedings to revoke the teacher's certificate pursuant to KRS 161.120 is in any way dispositive of this appeal. KRS 161.790(8) provides that unless an appeal of the tribunal's decision relative to contract termination is filed in circuit court within thirty days, that decision is final. Superintendent Burns did not indicate that the tribunal's decision had been challenged by the teacher whose records are at issue in this appeal. The tribunal's action is therefore final. Although they may be precipitated by the same incident or course of conduct, proceedings before the Education Professional Standards Board are confined to the issue of teacher certificate revocation. Certificate revocation proceedings before the Board are thus collateral to, but not a part of, contract termination proceedings before the tribunal. Although the district superintendent is required to inform the Board of the facts and circumstances leading to contract termination or nonrenewal, and to "forward copies of all relevant documents and records" to the Board, we find nothing in the language of KRS 161.120(2)(b) which suggests that those records are "controlled" by the Board. Under the line of authorities cited above, and specifically, City of Louisville, supra, and Kentucky Board of Medical Licensure, supra, records reflecting final agency action, the complaint which spawned the investigation, and any records adopted by the agency as part of that final action are subject to disclosure unless they are excluded from inspection by another exception. At the conclusion of the Education Professional Standards Board certificate revocation proceedings, and again assuming the nonapplicability of any other exception, the Board's nonexempt records relative to the teacher will be subject to disclosure under the same line of authorities.

It should also be noted that the Superintendent's assertion that release of records pertaining to teacher discipline would violate the teacher's civil rights is not a proper basis for denying access to those records under the Open Records Act. Superintendent Burns offers no explanation for this assertion, and we are hard pressed to conceive of any set of facts under which release of records relating to public employee discipline under the Act would infringe the teacher's civil rights. We therefore reject this argument.

With respect to records pertaining to the second case of teacher discipline in Owen County, which were previously released to The News-Herald, we find that Superintendent Burns's response was deficient to the extent that she failed to state whether all nonexempt records were disclosed. In her response to Mr. Ashcraft's request, Superintendent Burns indicated that the "hearing results" were released to a reporter for The News-Herald sometime in November, 1994. She did not state whether the complaint which spawned the investigation, the document reflecting final tribunal action, or any records which were adopted by the tribunal as part of its final action, were released to the reporter. It is the opinion of this office that the Owen County School Board is obligated to release these records forthwith, if it has not already done so.

We do not believe, however, that the Board is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:

To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended.

Unless The News-Herald can explain the necessity of reproducing the same records which have already been released to it, such as loss or destruction of the records, we can see no reason why the Board must satisfy the same request a second time.

Turning to the second question in this appeal, we find that the Owen County School Board violated the Open Records Act when it redacted all information which appeared on its attorneys' billing statements which revealed the nature of the services rendered. This office has recognized on more than one occasion that information appearing on an attorney's billing statement which reflects the general nature of services rendered is not protected by the attorney-client privilege or any other recognized exception to public inspection. OAG 92-14; OAG 92-92; 95-ORD-18. See also, OAG 82-169; OAG 85-91. We have also recognized that an agency may exercise its discretion by redacting any or all references to substantive legal matters, litigation strategy, or the specific nature of the services provided by its lawyer. Such information is exempt pursuant to KRS 61.878(1)(l) and the attorney-client privilege. Consistent with these opinions, the Owen County School Board should release its attorneys' billing statements, and redact only those portions which disclose substantive legal matters.

The News-Herald and the Owen County School Board may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/1597

Distributed to:

Superintendent Bonita Burns

Owen County Board of Education

1600 Highway 22E

Owenton, KY 40359

Hon. Jon L. Fleischaker

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville, KY 40202

Mr. James E. Ashcraft, Publisher

The News-Herald

P.O. Box 157

Owenton, KY 40359