Kentucky Teachers Strike 2018

Mackenzie Farkus filed this request with the Kentucky Department of Education of Kentucky.
Status
Completed

Communications

From: Mackenzie Farkus


To Whom It May Concern:

Pursuant to the Kentucky Open Records Act, I hereby request the following records:

All emails concerning the Kentucky Teachers Strike from March 29-April 6, 2018. Please use the keywords "Kentucky Education Association," "strike," "teachers strike," "called out," and "sick."

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.

Sincerely,

Mackenzie Farkus

From: Kentucky Department of Education

Response via email
requests@muckrock.com<mailto:requests@muckrock.com>

Dear Muckrock:

The Kentucky Department of Education received your Open Records request on January 13, 2020 at 5:01 AM. KDE, to the undersigned’s knowledge, has no record of a prior request.

Pursuant to the Kentucky Open Records Act, you have requested the following records from the Kentucky Department of Education (KDE):
All emails concerning the Kentucky Teachers Strike from March 29-April 6, 2018. Please use the keywords "Kentucky Education Association," "strike," "teachers strike," "called out," and "sick."

KDE must formally deny the request as written. The Open Records Act requires an applicant for public records to describe the requested records with enough specificity to allow the public agency to identify and locate the records. See 03-ORD-213, 03-ORD-12, 02-ORD-161, and 98-ORD-17. As such, a public agency is not obligated to honor blanket requests on a particular subject, (see OAG 90-83 and 95-ORD-108) including a request for any and all records on a particular topic. 15-ORD-086.

The request is not properly framed to allow KDE to determine what search parameters need to be used as the request does not include specified senders or recipients. Thus, the request does not “precisely describe the public records” sought. KRS 61.872(3); see also 19-ORD-084 (“This standard of precise description for records by mail is generally not met by what has been described as the ‘open-ended any-and-all-records-that-relate type of request.’ 08-ORD-058. Such a request runs the risk of being ‘so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.’ 96-ORD-101.”).

KDE is also denying this request as written under KRS 61.872(6) as creating an undue burden. See 17-ORD-104; 99-ORD-14 (“[A] request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ... generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.”). In this situation, you have included no desired senders and recipients to search to find documents. Because KDE cannot determine the parameters of this request KDE would have to review every email sent and received from all employees of KDE.

KDE has attached to this email its response to a prior open records request that might encompass what you are trying to request. This production was in response to a request for search for terms including the following: “JCPS, Jefferson County Public Schools, Jefferson County, Pollio, Sickout, Sick out, Strike, Illegal, Work stoppage, Wildcat, 120 United, JCPS Leads, JCTA, Jefferson County Teachers Association, KEA, Kentucky Education Association, KAPE, Kentucky Association of Professional Educators, Facebook, Twitter, Brent, McKim, Nema, Brewer, Tim, Hill and Pollio” and sent to or from the following individuals: Wayne Lewis, Hal Heiner, Gary Houchens, Teresa Perry, Ben Cundiff, Ben Cundiff, Richard (Rich) Gimmel, Kathy Gornik, Alesa Johnson, Joseph Papalia, Milton Seymore, Amanda Stamper, Laura Timberlake and Carrie Rogers.

KDE withheld records from this prior production and redacted records from this prior production pursuant to exemptions set forth at KRS 61.878. The exceptions claimed in this prior production are reproduced below:

Specifically, the KDE is in possession of records that were retrieved in your search parameters that are exempt from inspection pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j) as those records are preliminary in nature and do not give notice of final agency action, and are preliminary drafts wherein opinions are expressed or policies formulated or recommended. OAG 88-57, OAG 88-32, OAG 87-24, OAG 86-26, OAG 84-163, 18-OMD-061, 17-ORD-141, 10-ORD-164.

KDE is in possession of calendar invitations, calendars and emails concerning scheduling that include the search terms and parameters listed in your request. However, these records are exempt from production pursuant to KRS 61.878(1)(i) and (j). Calendars and date books are considered preliminary in nature and not subject to inspection. See Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995).

Pursuant to KRS 61.878(1)(a), KDE redacted phone numbers, home addresses, and email addresses of private citizens from responsive records as releasing that information would constitute an unwarranted invasion of personal privacy. Also, personal phone numbers of public employees have been redacted pursuant to KRS 61.878(1)(a) as releasing that information would constitute an unwarranted invasion of personal privacy.

To the extent you request records provided to Commissioner Lewis by local school districts related to sick leave notification from teachers, these records are documents of a local school district and were obtained by the Commissioner pursuant to his authority under KRS 156.010, 156.200, and 156.210, not the Kentucky Open Records Act. The Kentucky Supreme Court has recognized that when a public official obtains records from another public agency in exercise of legitimate governmental functions, the public official obtaining the records may be restricted by exemptions in KRS 61.878(1) as asserted by the originating public agency. See Strong v. Chandler, 70 S.W. 3d 405 (Ky. 2002). Local school districts assert that records provided to the Commissioner related to sick leave notification from teachers are preliminary in nature and are exempt from inspection under the Kentucky Open Records Act pursuant to KRS 61.878(1)(i) and (j). Pursuant to the Court’s opinion in Strong v. Chandler, KDE asserts the same exemption in response to your request to the extent your request includes records obtained by the Commissioner pursuant to his authority under KRS 156.010, 156.200, and 156.210.

Finally, KDE is withholding records that are exempt from inspection pursuant to KRS 61.878(1)(l) and the attorney-client privilege. See Hahn v. Univ. of Louisville, 80 S.W.3d 771, 775 (Ky. 2001). Documents which constitute attorney work product and come within the attorney-client relationship may be excluded from public inspection.  OAG 87-28.

The documents produced are available at the following link: https://drive.google.com/open?id=14rTfaOpfLmNsXfLuJLYePlPI6ZnKOH0X. Please download these documents within two weeks as at that time they will be removed from the Google Drive.

I hope you find this information helpful. Should you require any further assistance please do not hesitate to contact me at the below number or email.

[email logo-01-01]

John G. Landon
Staff Attorney
Office of Legal Services
Kentucky Department of Education
300 Sower Blvd. – 5th floor
Frankfort, KY 40601
Phone: (502) 564-4474
Email: John.Landon@education.ky.gov<mailto:John.Landon@education.ky.gov>
Confidentiality Notice: This e-mail message, including any attachment, is for the sole use of the intended recipient(s) and may contain information that is privileged, confidential and/or attorney work product. Any unauthorized review, use, disclosure or distribution is strictly prohibited. If you are not the intended recipient, please contact the sender, by e-mail and by phone at 502-564-4474, and destroy all copies of the original message. Neither this transmission or any attachment, nor any error in transmission or misdelivery shall constitute a waiver of any applicable legal privilege.

From: Kentucky Department of Education

Great response! Thanks for handling!

TGA

[email logo-01-01]

Todd G. Allen
Interim General Counsel
Office of Legal Services
Kentucky Department of Education
300 Sower Blvd. – 5th floor
Frankfort, KY 40601
Phone: (502) 564-4474
Email: Todd.Allen@education.ky.gov<mailto:Todd.Allen@education.ky.gov>
Confidentiality Notice: This e-mail message, including any attachment, is for the sole use of the intended recipient(s) and may contain information that is privileged, confidential and/or attorney work product. Any unauthorized review, use, disclosure or distribution is strictly prohibited. If you are not the intended recipient, please contact the sender, by e-mail and by phone at 502-564-4474, and destroy all copies of the original message. Neither this transmission or any attachment, nor any error in transmission or misdelivery shall constitute a waiver of any applicable legal privilege.

From: Mackenzie Farkus

Hi Todd,

Not sure you meant to send this "Great response! Thanks for handling!" message to me. I think you meant to send it to someone in your own office.

Thanks,
Mackenzie Farkus

From: Kentucky Department of Education

Response via email
requests@muckrock.com<mailto:requests@muckrock.com>

Dear Muckrock:

The Kentucky Department of Education (KDE) received the below request on January 28, 2020. This January 28, 2020 request is duplicative of a request that KDE responded to previously on January 16, 2020 (reproduced below). Please refer to our prior response. The documents included are still available to download at the link reproduced below. Should you have any trouble retrieving those documents please do not hesitate to contact me.

[email logo-01-01]

John G. Landon
Staff Attorney
Office of Legal Services
Kentucky Department of Education
300 Sower Blvd. – 5th floor
Frankfort, KY 40601
Phone: (502) 564-4474
Email: John.Landon@education.ky.gov<mailto:John.Landon@education.ky.gov>
Confidentiality Notice: This e-mail message, including any attachment, is for the sole use of the intended recipient(s) and may contain information that is privileged, confidential and/or attorney work product. Any unauthorized review, use, disclosure or distribution is strictly prohibited. If you are not the intended recipient, please contact the sender, by e-mail and by phone at 502-564-4474, and destroy all copies of the original message. Neither this transmission or any attachment, nor any error in transmission or misdelivery shall constitute a waiver of any applicable legal privilege.

From: Mackenzie Farkus

Hello,

I am unable to access the Google Drive link, as it does not recognize my email as being given permission. Is there any way you could download the file from Drive and then attach the file via email?

Thanks,
Mackenzie Farkus

From: Kentucky Department of Education

Dear Mackenzie,

I initially tried to attach this to an email but it was too large. I can look at the drive and check it out again.

From:

I've shared an item with you:

OrrMattheuDocs.pdf
https://drive.google.com/file/d/14rTfaOpfLmNsXfLuJLYePlPI6ZnKOH0X/view?usp=sharing&invite=CMbHxEA&ts=5e4bf73e

It's not an attachment -- it's stored online. To open this item, just click
the link above.

From: Kentucky Department of Education

I tried again. Can you give it a try and make sure you can download the documents? Let me know when you do so that I can delete them from the drive. Thanks!

From: Mackenzie Farkus

Hello John,

I received the file! Thanks for your help.

Best,
Mackenzie Farkus

From: Kentucky Department of Education

Response via email
requests@muckrock.com<mailto:requests@muckrock.com>

Dear Muckrock:
KDE is in receipt of the attached follow up correspondence requesting a follow up on the status of an Open Records Request submitted by Muckrock on March 21, 2019.
Based upon the attached document and email correspondence contained therein, it appears Ms. Mackenzie Farkus acknowledged receipt of the records on February 28, 2020.
Please advise KDE what you are following up on?
Sincerely,
Kasey Chafin
Staff Attorney
Kentucky Department of Education

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