NOT TO BE PUBLISHED

In re: Deanna Mascle/Montgomery County Board of Education

This is an appeal from the Montgomery County Board of Education's response to Mt. Sterling Advocate managing editor Deanna Mascle's June 24, 1997, request for the written list of charges against Montgomery County High School principal Brad Sorrell which was the basis for the decision not to renew Mr. Sorrell's contract, as a principal, and his demotion to classroom teacher. On June 30, 1997, the Board denied Ms. Mascle's request relying on KRS 61.878(1)(a), (j), and (l). The latter provision, the Board argued, operates in tandem with KRS 161.765(2) (d) to prohibit disclosure of the list of charges. The question presented in this appeal is whether the Montgomery County Board of Education properly denied Ms. Mascle's request on the basis of the cited exceptions. For the reasons which follow, we conclude that the Board violated the Open Records Act in denying her request.

KRS 61.878(1)(l) excludes from the mandatory inspection requirements of the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The Board argues that this provision incorporates KRS 161.765(2) into the Act. KRS 161.765(2)(d) provides that with respect to proceedings for demotion of administrative personnel:

The hearing on the demotion shall be public or private, at the discretion of the administrator and shall be limited to the matters set forth in the written statement of grounds for demotion. The board shall provide to the administrator a verbatim transcript of the hearing. The board of education shall hear the case, with the board chairman presiding. The board, upon hearing the evidence and argument presented, shall retire to private chambers to arrive at a decision. Counsel or representatives for either party in the hearing shall not be consulted by the board unless the corresponding counsel or representatives for the other party are present and unless a verbatim transcript of such consultation is made for the record.

It is the Board's position that this provision "evidences a legislative intent that certain privacy interests remain protected in these situations . . . [and] records relating to the closed hearings are . . . not subject to disclosure. . . ." We do not agree.

In 95-ORD-47, the Attorney General addressed a similar legal issue in a different factual context. There we dealt with the right of access to documents generated in the course of teacher tribunal hearings conducted under KRS 161.790 as opposed to the right of access to documents generated in the course of administrator demotion proceedings conducted under KRS 161.765. Subsection (5) of the statute pertaining to teacher tribunal hearings provides:

The hearing may be public or private at the discretion of the teacher. At the hearing, a hearing officer appointed by the chief state school officer shall preside with authority to rule on procedural matters, but the tribunal shall be the ultimate trier of fact. The local board shall pay each member of the tribunal a per diem of one hundred dollars ($100) and travel expenses.

At page 5 of 95-ORD-47, we observed:

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. . . ."

We believe that this reasoning can be extended to the appeal before us. The public's interest in disclosure of records pertaining to the demotion of an administrator is at least as great as, if not greater than, the public's interest in records pertaining to teacher contract termination. Because KRS 161.765 does not specifically exclude from public inspection records pertaining to the demotion of an administrator, we find that the Open Records Act compels disclosure.

We also reject the Board's reliance on KRS 61.878(1)(i), incorrectly cited as KRS 61.870(1)(j). That exception authorizes nondisclosure of "preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency." This exception was also invoked in 95-ORD-47, prompting this office to observe:

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 SW2d 658 (1983); Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 SW2d 953 (1983); Kentucky Board of Examiners of Psychologists v Courier-Journal, Ky., 826 SW2d 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.

95-ORD-47, p. 2, 3. Based on this analysis, we find that the Board's reliance on KRS 61.878(1)(i) was misplaced, and that it is obligated to disclose the written list of charges. It is this record which initially spawned the demotion proceedings, and which is deemed incorporated into the Board's final action relative to Mr. Sorrell, namely contract termination and demotion.

Finally, we hold that the Board of Education improperly relied on KRS 61.878(1)(a) in denying Ms. Mascle access to the list of charges. KRS 61.878(1)(a) excludes from the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This issue, too, was addressed in 95-ORD-47. At page 3 of that decision we held that disclosure of records relating to public employee discipline is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. We noted that this position 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. Here, as in our earlier decision, the Board of Education has failed to adduce any evidence to substantiate its claim that release of the list of charges would constitute a clearly unwarranted invasion of personal privacy. A bare allegation will not suffice. In the absence of specific proof, "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." 95-ORD-47, p. 3.

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 KRS 61.880(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

#767

Deanna Mascle

Managing Editor

Mt. Sterling Advocate

P. O. Box 406

Mt. Sterling KY 40353

William H. Fogle

Fogle and Maze

Attorneys at Law

P. O. Box 476

Mt. Sterling KY 40353

Dr. Richard Hughes

Superintendent

Montgomery County High School

640 Woodford Drive

Mt. Sterling KY 40353