TO BE PUBLISHED
97-ORD-2
January 8, 1997
In re: Danny Miller/Clark County Board of Education
Open Records Decision
This matter comes to the Attorney General on appeal from the Clark County Board of Education's denial of Danny Miller's November 15, 1996, request to inspect records containing the results of drug tests administered to school bus drivers in the Clark County school system. Mr. Miller did not request names. Instead, he indicated that he only wished to know how many drivers passed and how many drivers failed. On November 18, Mr. Miller was orally notified that the requested records were not available. On November 20, the school system modified its position. Superintendent Donald W. Pace advised Mr. Miller that the records are available, but that “counsel is reviewing statutes regarding the ramifications of release.” Superintendent Pace further advised that a decision would be rendered within ten days. Mr. Miller initiated this appeal on December 6, 1996.
In response to this office's notification of open records appeal, John O. Sheller, counsel for the Clark County Board of Education, articulated the board's position in a letter dated December 17. The board's primary objection centers on Mr. Miller's failure to identify specific records in his open records request. Instead, Mr. Sheller notes, Mr. Miller “seeks to compel the Board to compile and summarize information which might be contained in its records and create a new record which otherwise would not exist.” Disclosure of the underlying records, he argues, would reveal the identities of the individuals tested. Similarly, disclosure of pass/fail information would also identify the individuals “because one could infer that anyone discharged contemporaneously with the drug testing process . . . tested positive. . . .”
The board next argues that the test results are exempted from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(a),(k), and (l). Mr. Sheller references a number of state and federal laws and regulations governing drug testing of bus drivers. He observes:
Under Kentucky law, the Department of Education is empowered to implement regulations for bus drivers. KRS 156.160; KRS 189.540. Based upon that statutory authority, drug testing of bus drivers has been authorized by the Department of Education under Kentucky administrative regulations. 702 KAR 5:030, Section 9; 702 KAR 5:080, Section 2(2). These regulations cross-reference KDE-1530, which is a state-wide drug testing policy for schools.
KDE-1530, in turn, cross-references federal drug testing statutes and regulations under the purview of the United States Department of Transportation and its sub-department, the Federal Highway Administration. The key statutory provision, part of the Consolidated Omnibus Employee Drug Testing Act of 1991, is now codified at 49 U.S.C. § 31306.
This statute empowers the United States Department of Transportation, acting through the Secretary of Transportation, to prescribe regulations on drug testing. The Secretary has done so in 49 C.F.R. Part 40. Those regulations require each subordinate agency, including the Federal Highway Administration, to promulgate its own drug-testing regulations. The latter agency has done so in 49 C.F.R. Parts 382 and 391.
It is the Clark County Board of Education's position that the cited provisions, read together, mandate the confidentiality of drug test results, and that they are incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l). Having reviewed the cited provisions, we concur.
As Mr. Sheller notes, the State Board for Elementary and Secondary Education of the Kentucky Department of Education has implemented a comprehensive policy relative to transportation personnel, which is aimed at insuring an alcohol and drug free transportation system, and which complies with the federal Department of Transportation and Highway Administration's Omnibus Employee Drug Testing Act, codified at 49 U.S.C. § 31306. That Act requires employers [1] to test drivers, who must obtain commercial driver's licenses, for the illegal use of alcohol and controlled substances. 49 U.S.C. § 31306(7) provides for the confidentiality of test results of employees. Supporting regulations clearly prohibit employers from releasing driver controlled substances test results, and delineate the limited conditions under which the results can be released and to whom. 49 C.F.R. § 382.405; 49 C.F.R. § 391.89; see also, 49 C.F.R. § 40.35 (providing that employer contracts with laboratories require that the laboratories maintain employee drug test records in confidence).
KRS 61.878(1)(k) authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation[.]
This provision operates in tandem with the cited federal law and regulations to prohibit disclosure of drug test results. Accordingly, we believe that the Clark County Board of Education may properly withhold records containing drug test results. Because we find that KRS 61.878(1)(k) and the applicable federal law and regulation authorize nondisclosure of these records, we do not address the propriety of the board's invocation of KRS 61.878(1)(a) and (l).
Although Mr. Miller did not request the identities of the individuals tested, indicating that he was only interested in pass/fail information, we concur with the board in its view that disclosure of this information would violate federal law by identifying individuals tested since one could infer that persons discharged contemporaneously with the drug testing process tested positive, and persons not discharged tested negative. Moreover, and as Mr. Sheller properly observes, the board is not obligated to compile information on pass/fail results or to create a record in order to satisfy Mr. Miller's request. 96-ORD-139; 95-ORD-48. Thus, at page 4 of OAG 89-77, this office observed, “[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.” (Emphasis in original.)
We do, however, note that the Clark County Board of Education's open records response was procedurally deficient. 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 agency action.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must “immediately so notify” the requester, and designate a place, time, and date for inspection “not to exceed” three days from receipt of the request, “unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.” KRS 61.872(5). See, e.g., 95-ORD-105. We urge the Clark County Board of Education to review the cited provisions to insure that future responses conform to the Open Records Act.
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 KRS61.880(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.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
1446
Distributed to:
Danny Miller
2600 Trapp Goffs Corner Road
Winchester KY 40391
Donald W. Pace
Superintendent
Clark County Board of Education
1600 W. Lexington Avenue
Winchester KY 40391
John O. Sheller
Smith and Smith
400 North, First Trust Centre
200 South Fifth Street
Louisville KY 40202-3238
[1] Defined as “a person (including the United States Government, a State, or a political subdivision of a State) that owns or leases a commercial motor vehicle or assigns employees to operate a commercial motor vehicle[.]”