Request By:
Mr. Arthur Hatterick, Jr.
Executive Director and Secretary
Kentucky Personnel Board
Room 372 Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson Assistant Attorney General
Mr. Mark Hebert has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain records in your custody. Mr. Hebert described the records in question as the "Cathy Dunn case - all documents pertaining to this particular case . . . ." In her case before the State Personnel Board Ms. Dunn alleged sex discrimination and/or harassment and failure to receive a promotion to which she was entitled.
In a written communication to Mr. Hebert, dated July 2, 1986, you advised him that his request was approved in part and rejected in part. You permitted him to inspect the report of Wilburn K. De Bruler, dated June 24, 1986, and the Personnel Board's order dated June 30, 1986. You further stated that, "The request to inspect the remaining information in this file is denied." In support of your position to refuse to permit Mr. Hebert to inspect the remaining documents in the file you cited KRS 61.878(1)(a), (f) and (h).
Since the undersigned Assistant Attorney General initially had no idea what "the remaining information in this file" consisted of, I telephoned you and made arrangements to inspect the entire file in question. While I did not read every line of every page I did on July 7, 1986, examine the documents with sufficient thoroughness to determine what types of documents were contained in the file.
As far as I can ascertain the documents in the file which Mr. Hebert was not permitted to inspect consist of the following: A memorandum to Arthur Hatterick, Jr. from W. K. De Bruler, the Board's Investigating Officer, dated May 29, 1986, consisting of summary interviews of various persons employed by Natural Resources and Environmental Protection Cabinet; letters to Mr. De Bruler from Cathy Dunn dated March 3, 1986, February 3, 1986, January 28, 1986; materials relative to applications for leave, dated February 24, 1986, and March 3, 1986; a one page listing of inspections apparently made by Ms. Dunn; various documents (8 pages) consisting of applications for leave forms, notes from people in Ms. Dunn's office and one medically excused absence form; a letter to Mr. Hatterick from Marie Alagia Cull, Esq., Ms. Dunn's attorney, requesting the Personnel Board to investigate Ms. Dunn's allegations of wrongdoing, which also sets forth "most of the relevant facts supporting her complaints," dated January 9, 1986, to which exhibits A, B and C were attached; the Investigating Officer's Report, pages 1-36 of which consist of his observations, opinions, conclusions and interviews, pages 37-66 of which consist of letters received by the investigating officer from Ms. Dunn, pages 57-102 of which consist of applications for leave forms, letters from Ms. Dunn, letters from Ms. Dunn's attorney, reports relative to Ms. Dunn's job and various other documents which appear to be preliminary in nature.
Mr. Hebert in his request to your office also maintained that all documents in the file should be made available for public inspection since the Personnel Board has concluded its investigation of the matter.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(a), (g) and (h) as follows:
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
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"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended; "
This office in OAG 86-28, copy enclosed, dealt with KRS 61.878(1)(a), the right of privacy and whether in a particular fact situation the public's right to know outweighs a person's right to his personal privacy. Applying the statute and the rules and principles discussed in that opinion to this situation and the documents in question, it is the opinion of the Attorney General that records and documents pertaining to an employee's applications for leave and a medically excused absence may be withheld from public inspection pursuant to the privacy exemption.
In OAG 86-26, copy enclosed, this office considered KRS 61.878(1)(g) and (h) relative to preliminary drafts and notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies recommended. Also discussed was the case of
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982), where the court concluded that investigative files could be exempted from public inspection as preliminary under KRS 61.878(1)(g) and (h).
Thus those records consisting of the memorandum from W. K. De Bruler to Arthur Hatterick, Jr. (summary interviews) , letters to Mr. De Bruler from Cathy Dunn, notes and memoranda from people in Ms. Dunn's office and the investigating officer's report consisting of 102 pages may be excluded from public inspection under the provisions of KRS 61.878(1)(g) and (h).
The last document to consider involves the letter from Marie Alagia Cull, Esq., to Mr. Hatterick, requesting the Personnel Board to investigate Ms. Dunn's complaints relative to the actions of her supervisor. This is the complaint which initiated the Personnel Board's investigation and led to the report of Mr. De Bruler, dated June 24, 1986, and the Board's order of June 30, 1986.
In
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982), the Court said, relative to the internal investigative files and the complaints which led to the investigation, that the complaints per se are not exempt from inspection once final action is taken. Since whatever final actions are taken stem from the initial complaints, they must be deemed incorporated as a part of those final determinations. At page 660 of its opinion the Court said in part:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
In
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984), the Court said in part at page 956 of its opinion as follows:
". . . It is beyond contention that complaints which 'initially spawned' any investigations of Kentucky physicians may not be excluded because the public 'has a right to know what complaints have been made.' Id. at 660. It is clear then that the trial court was correct in ruling that once final action is taken by the Board, the initial complaints must be subject to public scrutiny. The Board's attempt to categorize complaints as formal public complaints and private individual complaints has no bearing on whether such complaints must be released. Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878 (1)(g) or (h) . . ."
It is therefore the opinion of the Attorney General that the document which constitutes the complaints which "initially spawned" the Board's investigation, in this case the letter to the Personnel Board's Executive Director and Secretary from the complaining party's attorney, may not be excluded from public inspection and the Board improperly withheld that particular document from the inspection of the requesting party. As previously noted, the Board's actions in withholding the other documents in the file are supported by the provisions of KRS 61.878(1)(a), (g) and (h).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Mark Hebert. Both the requesting party and the Kentucky Personnel Board have the right to challenge this opinion in circuit court pursuant to KRS 61.880(5).