Request By:
Frank X. Quickert, Jr., Esq.
Director of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: David L. Armstrong, Attorney General;Thomas R. Emerson, Assistant Attorney General
William T. Warner, Esq., has appealed to the Attorney General pursuant to KRS 61.880 you and your staff's denials of his requests to inspect a particular public record in your custody. He describes the record in question as one portion of the audio transcription (cassette tape recording) of the January 30, 1985 hearing involving Robert J. Eichenberger and the Louisville Civil Service Board.
Robert J. Eichenberger had a public hearing before the Louisville Civil Service Board pursuant to KRS 90.190 on January 30, 1985. He was represented by counsel and the hearing involved a disciplinary matter. Mr. Eichenberger's defense to the charges brought against him by the city fire department was that of temporary emotional distress. At one point during the hearing his attorney requested that all persons (other than the Board members and the attorneys) leave the hearing room while he testified about a personal matter that occurred the night before the disciplinary incident in question. Nobody at the hearing objected to the request, Mr. Eichenberger testified briefly relative to the personal matter and the public hearing resumed shortly thereafter.
Mr. Warner maintains in part that your office should make available that portion of the tape in question. He says the hearing was a public hearing and there is no authority to close a portion of such a hearing. The public has a right of access to the entire proceedings.
In your letter to Mr. Warner, dated April 18, 1985, you advised him that the portion of the tape recording he requested would not be released. You described that portion of the tape as a "sensitive and personal matter" and you cited KRS 61.878(1)(a) and (j) and KRS 61.810(6) in support of your decision. Mark W. Dobbins, Esq., of your office, in his letter to Mr. Warner, dated April 11, 1985, declined to release that portion of the tape in question and David Leightly, Esq., of your office, in his letter to Mr. Warner dated April 8, declined to release that portion of the tape in question, relying primarily on KRS 61.878(1)(a) relative to an unwarranted invasion of personal privacy.
Opinion of the Attorney General
In regard to references or inferences to the applicability of the Open Meetings Law (KRS 61.805 to KRS 61.850) we direct your attention to KRS 61.805(2) which defines the term "public agency. " That term as it applies under the Open Meetings Laws excludes "judicial or quasi-judicial bodies" from its coverage. See OAG 83-259, copy enclosed, dealing with administrative boards which sometime perform quasi-judicial functions.
However, if the Civil Service Board has not properly performed its quasi-judicial function in connection with the hearing of January 30, 1985 the corrective remedy is not an appeal under the Open Records Act but some appropriate action in a court of law. Even if the Open Meetings Act were applicable, actions of a public agency which do not conform to those provisions are voidable by a court of competent jurisdiction and not by this Office under an Open Records Appeal. See KRS 61.830.
KRS 61.878(1)(a) provides as follows:
"The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
While the undersigned Assistant Attorney General has not actually heard that portion of the tape in question, I have been furnished with a summary of the testimony during the "closed" portion of the hearing involving Robert J. Eichenberger. As this Office said in OAG 76-717, copy enclosed, the concept of "a clearly unwarranted invasion of personal privacy" requires a balancing of interests between the public's right to know and the right of persons to privacy.
In the situation presented by this appeal, a municipal firefighter, during a disciplinary hearing, testified briefly during a "closed" portion of the hearing concerning a particular domestic incident which he said was part of the reason for his loss of control which led to charges being brought against him. While the testimony was available to the Board for whatever value the Board placed upon it, public disclosure of such testimony would serve no useful purpose and would constitute a clearly unwarranted invasion of the firefighter's personal privacy. Furthermore, whether or not the Board had the authority to so act, none of the parties to the proceeding objected to the procedure whereby the hearing was briefly closed. The testimony on this particular matter was given on the condition of nondisclosure, a point which all the participants at the hearing accepted.
Considering Mr. Warner's letter to this Office strictly as an appeal under the Open Records Law, it is the opinion of the Attorney General that your denial of his request to inspect a portion of a tape recording involving a firefighter's disciplinary hearing before the Civil Service Board was proper under KRS 61.878(1)(a), as the release of that particular testimony would constitute a clearly unwarranted invasion of the firefighter's personal privacy.
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).