Kentucky Department of Education broke records law about department staff absences, AG says

The Kentucky Department of Education violated the Kentucky Open Records Act in regard to KDE staff sick leave records, the Attorney General’s Office said in an opinion released Monday.

The AG ruling said Kentucky Department of Education staff violated the Open Records Act in its response to a man named Tyler Fryman, who in March asked for copies of KDE staff timesheets and emails from April 17, 2018, to March 15, 2019, to and from Commissioner Wayne Lewis that include the word ‘sick.’ Fryman could not be reached for comment Monday.

In the opinion released Monday, the AG’s office said the Kentucky Department of Education violated the state Open Records Act by an untimely response to Fryman’s request and by failing to explain open records exceptions. The department subverted the intent of the Open Records Act by imposing improper copying fees, delaying response with boilerplate language in lieu of a detailed explanation and by attempting to provide paper copies where the request designated electronic copies, the ruling said.

Fryman requested KDE department staff time sheets and records and emails containing the word ‘sick’ after Lewis asked school districts for teacher absence records during last spring’s General Assembly protests and asked districts to tighten teacher absence policies.

Teacher absences were among the biggest controversies for Kentucky educators in 2019 because several districts canceled classes.

Not long after Lewis’ request, Fayette County Public Schools and other Kentucky districts received a similar state Labor Cabinet subpoena asking for absence records, medical affidavits confirming illnesses, records of teachers making requests for absences, documents regarding the closing of schools and district policies.

Kentucky Department of Education spokeswoman Jessica Fletcher said Monday in response to the AG opinion that after receiving Fryman’s open records request, “KDE immediately responded that we were complying, but the agency would need more than three days given the incredibly broad scope of the request and the voluminous number of records it produced. “

“This request produced 2,125 pages of records which had to be reviewed to ensure that employee and student privacy was maintained in accordance with the law. It is unfortunate the opinion does not recognize the responsibility the agency bears to ensure that the privacy of its employees and that of students under FERPA (The Family Educational Rights and Privacy Act) is protected,” Fletcher said.

Kentucky Department of Education officials previously said that teachers who engaged in illegal work stoppages could be issued personal citations and fines up to $1,000 by the Kentucky Labor Cabinet. Kentucky Department of Labor staff did not immediately say Monday whether they had issued any citations.

Last April, Attorney General Andy Beshear, along with the Jefferson County Teachers Association filed a lawsuit in Franklin Circuit Court alleging that Kentucky Labor Secretary David Dickerson had acted unlawfully in seeking the information. A pretrial conference in that court case is set for August 19.

Meanwhile, as a result of the teacher records controversy, a new interpretation from the Kentucky School Boards Association could mean that some Kentucky teachers will have to provide a notarized affidavit when they are absent.

Some Kentucky teachers are finding out that they will have to fill out a new form when they are absent, providing either a physicians’ note or a statement authorized by a notary saying they were ill.

The Kentucky School Boards Association took a fresh look at state law and refreshed a recommended form.

KSBA Director of Advocacy Eric Kennedy said there has been no change in the current state law, which grants sick leave to a teacher or employee if they present a personal affidavit or a certificate of a physician stating that the employee or their family member was ill.

“With all of the recent renewed focus and attention on sick leave, we ...took a fresh look at the policies that we already had on this issue,” said Kennedy. “We did not at all go beyond what the statute has said for a long time. We refreshed the form.”

The law did not specify what an affidavit is, but the KSBA determined that an affidavit is a sworn, written statement that must be notarized. The KSBA’s recommended form has a space for a notary to sign if the teacher did not have a doctor’s note. Districts can also use their own form.

Some schools have a notary among their staff. Fayette County Public School officials did not immediately confirm whether teachers employed by that district will have to provide a notarized form. But district officials said in a statement that, “We will be distributing a new form for the 2019-20 school year.”