Beckham v. Board of Educ. of Jefferson County

• Decision Date: 24 March 1994
• Docket Number: Nos. 93-SC-967-,93-SC-968-DG,s. 93-SC-967-
• Citation: 873 S.W.2d 575
• Parties: 90 Ed. Law Rep. 875, 22 Media L. Rep. 2018 Lauretta R. BECKHAM, et al., Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 575

873 S.W.2d 575

90 Ed. Law Rep. 875, 22 Media L. Rep. 2018

Lauretta R. BECKHAM, et al., Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, et al., Appellees.

Nos. 93-SC-967-I, 93-SC-968-DG.

Supreme Court of Kentucky.

March 24, 1994.

John Frith Stewart, Dennis Franklin Janes, David William Hupp, John Christopher Sanders, Segal, Isenberg, Sales, Stewart, Cutler and Tillman, Louisville, for appellants.

Kenneth S. Handmaker, Mark S. Fenzel, Middleton & Reutlinger, Louisville, for appellees Bd. of Educ. of Jefferson County, KY.

Jon L. Fleischaker, Deborah H. Patterson, Ann Michelle Turner, Wyatt, Tarrant & Combs, Louisville, for appellees Courier-Journal and Louisville Times Co. and R.G. Dunlop.

LAMBERT, Justice.

The issue here is standing. We must determine whether a party affected by the decision of a public agency to release records pursuant to the Kentucky Open Records Act, KRS 61.870, et seq., has standing to contest the agency decision in court; or whether the only parties who may be heard are the agency and the person making the Open Records request.

By letters dated October 13, 1992, and October 23, 1992, the Courier-Journal and its reporter R.G. Dunlop, requested of the Board of Education of Jefferson County, pursuant to the Kentucky Open Records Act, inspection of various documents pertaining to the employment of appellants and other present and past employees of the Board of Education. Broadly requested were documents used by the Board to impose discipline upon appellants, their employment histories, and all grievances filed against them. The requesting parties characterize their request as seeking access to complaints filed and disciplinary actions taken including decisions to take no disciplinary action. On learning of the document request, appellants sought a commitment from the Board, on grounds of preventing an unwarranted invasion of their privacy, that the records would not be furnished. On refusal of the Board to make such a commitment with respect to any of the documents, appellants commenced litigation in the Jefferson Circuit Court to prohibit release of the documents sought.

On appellants' motion, a restraining order was issued at the commencement of litigation, but was dissolved less than one month thereafter and the documents were ordered furnished. The Board of Education presented the documents in question to the trial court for in camera review in categories I, II, and III. It expressed the belief that category I and II documents should be furnished but that category III documents should not be produced inasmuch as they did not represent final action on the part of the Board. Significantly, neither appellants nor appellees, the Courier-Journal and Dunlop, have had an opportunity to examine the documents in question nor approve or disapprove the categorization by the Board. However, these parties candidly acknowledge the probability that some of the documents requested should be produced and that others may be excluded from production pursuant to KRS 61.878. In its final order the trial court gave short shrift to the exclusions and required production of all documents. It said

The right of privacy does not extend to matters with which the public has a legitimate interest or concern. These people are school teachers entrusted with the care and control of the children of this community. The public has an absolute right to know into whose hands the Board of Education chooses to place the children of this community.

While the trial court's order did not expressly state that an in camera inspection of all documents had transpired, at least some of the documents were described with sufficient particularity to indicate that they had been reviewed. Moreover, as this Court's decision in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), mandates such a review, ¹ we construe the trial court's order as reflective of its opinion after having reviewed the documents. While the trial court did not expressly address the issue of standing, by having decided the merits of appellants' motion for a temporary injunction, it appears to have acknowledged their right to be heard.

Appellants appealed to the Court of Appeals and in that court obtained interlocutory relief pursuant to CR 65.08. As such, the Board of Education was enjoined from releasing the documents pending appellate review of the merits. In its opinion, the Court of Appeals held that appellants lacked standing to challenge the Board's decision to release the documents. ² Reviewing the statutory provisions and decisions from other jurisdictions, the court held that appellants were without standing.

[I]t was the intent of our legislature to provide remedies for those deprived of access to public documents. The remedies provided for in KRS 61.880 and 61.882 are for persons denied access to records. The exemptions in KRS 61.878 simply do not provide appellants a right or mechanism to prohibit disclosure of the objectionable information.

Beckham v. Board of Education of Jefferson County, Kentucky, Ky.App., 92-CA-2860-MR, slip op. at 8 (December 3, 1993).

Appellants next sought relief pursuant to CR 65.09 and CR 76.33. They requested and obtained an order from this Court's Chief Justice staying the opinion of the Court of Appeals until their motion for discretionary review could be heard. Discretionary review was granted and the actions consolidated in this Court.

Appellants claim standing to challenge release of the requested documents by virtue of two statutes. First, they point to KRS 61.878(1) whereby certain public records are excluded from application of the Act. Among the records excluded are those "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Likewise excluded under KRS 61.878(1)(h)-(i) are documents preliminary to final agency action. As authority for enforcement of the privacy right created in KRS 61.878(1), appellants point to KRS 61.882(1) which grants the circuit court "jurisdiction to enforce the provisions of [the Act] by injunction or other appropriate order on application of any person." These provisions, appellants contend, give them a right to seek prevention of disclosure, for without them the privacy right would be meaningless.

For their contention that appellants lack standing, appellees, the Courier-Journal and Dunlop, point to the policy of the Open Records Act and to the particularity of the Act with respect to the manner of requesting and furnishing the records including the right of persons wrongfully denied access to have costs and attorneys' fees.

The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.

KRS 61.871. They contrast this with the absence of a mechanism for persons wishing to block disclosure. According to appellees, the right to claim the privacy exemption contained in KRS 61.878 rests exclusively with the agency custodian of the records and even authorizes it to release records which are exempt. See OAG 92-75. For further support for their arguments, appellees rely upon the decisions of other jurisdictions construing similar but not identical Open Records Acts.

As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used. Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). With these principles in mind, we will address the issue of appellants' standing.

The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment. KRS 61.871. An extensive mechanism has been created for exercise of the right of inspection and imposes upon the record custodian the duty to respond appropriately. KRS 61.872. Public agencies are authorized to adopt rules and regulations but may not impose requirements which have the effect of thwarting access. KRS 61.876. In the event the request for access is denied, the agency must state the specific exemption which authorizes withholding the record and a party denied access may seek review by the Attorney General and the burden of proof is upon the agency. KRS 61.880.

Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are documents "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1). Also excluded are "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)(h)-(i). From the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental...