Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration and Official Records Custodian
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Thomas W. Miller, Esq., on behalf of his client, Ms. Pam Weaver, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody. He describes the materials in question as follows:
"Pursuant to KRS 61.870, we request that we be provided access to the personnel file of Mary Agnes Mackin for the purpose of inspection and copying any and all documents, reports or other writings which relate to the complaints made by Pam Weaver and the response to these complaints by Ms. Mackin. This is to specifically include, but not be limited to:
"1. Dr. Newman's letter to Ms. Mackin relating to the complaints made by Pam Weaver;
"2. Ms. Mackin's response to Dr. Newman's letter;
"3. Any other report made by Dr. Newman relating to this problem."
In your letter of March 12, 1985 to Mr. Miller, you advised him that his request made on Ms. Weaver's behalf was denied. You said that for him or Ms. Weaver to inspect Ms. Mackin's personnel file would constitute an invasion of Ms. Mackin's privacy. You can only release from her file her amount of salary, her vacation and sick leave records and her job classification.
From Mr. Miller's letter to this Office and his letter to you dated March 11, 1985 and from the undersigned Assistant Attorney General's telephone conversation with Ms. Gay Elste of the University's legal staff on April 2, 1985, the following paragraph is a, hopefully, reasonably accurate description of the factual situation involved.
As a result of some kind of dispute or disagreement between the two women, Ms. Weaver delivered a list of complaints to Mr. Lawson of the College of Agriculture about Ms. Mackin. Dr. Newman took the complaints made by Ms. Weaver and used them as the basis for a communication to Ms. Mackin. Ms. Mackin replied to Dr. Newman's letter. Dr. Newman conducted some kind of followup investigation relative to the complaints. The University has apparently concluded that at this point the complaints, letters and investigations are "inconclusive" and no final report, letter or other written document has been prepared and placed in anyone's file concerning the matter.
Opinion of the Attorney General
Among the public records which are excluded from the application of the Open Records Act and subject to inspection only upon the order of a court of competent jurisdiction are those materials set forth in KRS 61.878(1)(a), (g) and (h).
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. unwarranted invasion of personal privacy.
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"Preliminary recommendations, and preliminary memoranda in which opinions are opinions are expressed or policies expressed or policies formulated or recommended;"
In connection with the written communications between Dr. Newman and Ms. Mackin, we direct your attention to OAG 83-358, copy enclosed, at page two, where we said in part as follows:
"A letter written to Dr. Booth by MSU president Dr. Norfleet on behalf of the board of regents containing charges against Dr. Booth is thus protected against an unwarranted invasion of Dr. Booth's privacy. Dr. Booth's privacy. The public's right to know in this instance is not outweighed by Dr. Booth's right to privacy. This is especially true since Dr. Booth may invoke the option of having a Dr. Booth's right to privacy. This is especially true since Dr. Booth may invoke the option of having a private hearing on this matter, instead of a public hearing.
* * *
"The letter from Dr. Norfleet, although on behalf of the MSU board of regents, is correspondence with a private individual which does not give notice of a final action by the board. Thus, it remains exempt from public inspection."
The above quoted opinion cited the provisions of KRS 61.878(1)(a) and (g) in support of the agency's denial of the request to inspect public documents. The communications between Dr. Newman and Ms. Mackin are within these statutory exemptions to public disclosure under the Open Records Law. In addition to those provisions, KRS 61.878(1)(h) would also apply to the situation presented by Mr. Miller's appeal, particularly with reference to any investigation or report conducted or prepared by Dr. Newman. Such an investigation or report would appear to be a preliminary memorandum setting forth Dr. Newman's opinions relative to the matter in question.
While KRS 61.884 does provide that any person shall have access to any public record relating to him or in which he is mentioned by name, that section is subject to the provisions and exemptions set forth in KRS 61.878. In OAG 82-204, copy enclosed, at page three, we referred to an earlier opinion of this Office and said that under KRS 61.884 a person is entitled to inspect a document in which he is mentioned unless the document is exempt under the provisions of the Open Records Law. Furthermore, if the disclosure of the document would constitute a clearly unwarranted invasion of the personal privacy of any person (for example, the person who created the document), it is exempt under KRS 61.878(1)(a). If a document is composed of preliminary recommendations and preliminary memoranda in which opinions are expressed, it is exempt under KRS 61.878(1)(h). See also OAG 82-211, copy enclosed, and OAG 83-427, copy enclosed, where we said in part the right to inspect records under KRS 61.884 does not apply if the records contain preliminary drafts, notes and correspondence with private individuals (other than a notice of final action) as set forth in KRS 61.878(1)(g).
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the materials involved was proper under KRS 61.878(1)(a), (g) and (h) as those materials were covered by statutory exemptions pertaining to privacy, correspondence with a private individual not intended to give notice of final action by a public agency, and a preliminary memorandum in which opinions are expressed.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).