Request By:
Ms. Elizabeth M. Shipley
Compliance Supervisor
Louisville & Jefferson County
Human Relations Commission
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Stuart E. Alexander, III, Esq., has appealed to the Attorney General your denial of his law firm's request to inspect certain records pertaining to race discrimination claims. The specific records requested are described as "records concerning race discrimination claims against Jewish Hospital, Inc. within the past three years."
In your letter of November 9, 1984 to David Leightty, a member of the same law firm as Stuart E. Alexander, III, you replied in part as follows:
"The Louisville and Jefferson County Human Relations Commission can neither affirm nor deny that any charge has been filed against Jewish Hospital. Our records, if any, are not subject to the open records act and are confidential by Ordinance and Resolution. We have had no public hearings involving Jewish Hospital. Public hearing records are, of course, subject to public scrutiny."
Mr. Alexander states that you have set forth no specific reason for withholding the information sought but he assumes you are relying upon the provisions of the Kentucky Civil Rights Act (KRS Chapter 344) concerning confidentiality of information relative to a pending charge. He maintains that the confidentiality provisions do not apply to cases and charges of discrimination which have been resolved by agreement or final determination or by dismissal for failure to prosecute. He further alleges that KRS 344.250(6), assuming it applies to a local human rights commission, does not apply to charges of discrimination, pleadings filed in a discrimination case or to the final resolution of a case.
Mr. Alexander concludes by stating that the records concerning race discrimination claims against Jewish Hospital, Inc. within the past three years are subject to disclosure under the Open Records Law except insofar as those records reflect specific information exempted under the Kentucky Civil Rights Act. He maintains that does not include charges of discrimination, pleadings and similar documents filed in connection with the charges and the documents setting forth the final resolution of the charges.
OPINION OF THE ATTORNEY GENERAL
Presumably the Louisville and Jefferson County Human Relations Commission was created under KRS 344.310 which states in part that a city and county acting jointly may create a local human rights commission to provide for the execution within its jurisdiction of the policies embodied in KRS Chapter 344 and the Federal Civil Rights Act of 1964. When a matter is within its jurisdiction a local human rights commission has the same power and authority over that matter as the State Commission on Human Rights has over matters it is authorized to handle. See
Crutcher v. Commonwealth of Kentucky, 495 F.Supp. 603, 605 (E.D. Ky. 1980) and OAG 83-482, a copy of which is enclosed.
In OAG 79-608, copy enclosed, we said that a city-county human rights commission created under KRS 344.310 is a public agency operating under the laws of this state. Such an agency is a "public agency" under KRS 61.870(1) which for purposes of the Open Records Law defines a "public agency" as including "any other body which is created by state or local authority in any branch of government."
KRS 61.878 sets forth those public records which are excluded from the application of the Open Records Law and subject to inspection only upon the order of a court of competent jurisdiction. Included therein is KRS 61.878(1)(j) which includes, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
Since KRS Chapter 344 states in part that a local city-county human rights commission is authorized to provide for the execution of the policies set forth in the state's Civil Rights Act, the provisions of KRS Chapter 344 also apply to city-county human rights commissions. KRS 344.200(4) provides in part as follows:
". . . Except for the terms of the conciliation agreement, neither the commission nor any officer or employe thereof shall make public without the written consent of the complainant and the respondent, information concerning efforts in a particular case to eliminate an unlawful practice by conference, conciliation, or persuasion whether or not there is a determination of probable cause or a conciliation agreement."
In addition, KRS 344.250(6) states:
"It is unlawful for a commissioner or employe of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this Chapter."
Information obtained by a city-county human relations commission would include the complaint of discrimination and the initial charge of discrimination as this is the beginning of the proceedings which may ultimately end in a conciliation agreement before the commission or in proceedings in a court of law or before the commission. In OAG 80-148, copy enclosed, we concluded:
"Unless a proceeding has first been instituted under KRS Chapter 344, all information obtained by the Commission remains privileged. In such a case, the Commission must refuse to disclose such information without the person's consent unless ordered to do so by a court of competent jurisdiction. "
If a proceeding has been instituted, we believe that what is available for public inspection is dependent upon the level at which the proceeding has progressed. If the proceeding is at the level dealt with in KRS 344.200 and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. KRS 344.200(4) deals with a conciliation agreement and limits the information available to the "terms of the conciliation agreement."
The purpose of federal nondisclosure provisions where a conciliation process is involved is said to be to ensure that those directly involved in the conciliation process can fully and in good faith participate therein, uninhibited by any threat that their statements and actions will be released to anyone not otherwise privy thereto. See 14 C.J.S. Supp., Civil Rights § 182, footnote 2 at p. 301. In addition, we direct your attention to 15 Am. Jur. 2d Civil Rights §§ 313, 321 and 332, dealing with limitations on disclosure under various federal provisions relative to Civil Rights.
If the proceeding has progressed to the point of a hearing under KRS 344.210, then the hearing transcript which is required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.
CONCLUSIONS
1. A city-county human rights commission created under KRS 344.310 is a "public agency" as the term is defined in the Open Records Law [KRS 61.870(1)].
2. KRS 61.880(1) requires that a public agency denying a request to inspect its records shall include a statement of the specific exception under the Open Records Law authorizing the withholding of the record and a brief explanation as to how the exception applies to the record withheld.
3. KRS 61.880(2) requires that a copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General.
4. A city-county human rights commission cannot rely upon local ordinances and resolutions to deny a request to inspect public records if such records are open to public inspection under the State Open Records Law.
5. Where a proceeding has been instituted under KRS 344.200 and has resulted in a dismissal of the complaint or the entering of a conciliation agreement, only the order of dismissal or the terms of the conciliation agreement are subject to public inspection.
6. Where a proceeding has been instituted under KRS 344.210 and a hearing has been held, the hearing transcript, all evidence introduced at the hearing and the subsequent decision of the Commission are subject to public inspection under the Open Records Law.
Thus, the request to inspect public records under the Open Records Law was properly denied to the extent that the public agency's actions were consistent with the conclusions set forth above and the request was improperly denied to the extent that those agency actions conflict or are inconsistent with the conclusions set forth above.
As required by statute, a copy of this opinion is being sent to the requesting party and either party has the right to challenge it in court pursuant to KRS 61.880(5).