Request By:
Rex Hunt, Esq.
General Counsel
Kentucky Labor Cabinet
The 127 Building
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Richard L. Masters, Esq., on behalf of his client, Roxanna Miller, has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of her request to inspect various records in the custody of the Kentucky Labor Cabinet.
In a letter to Mr. Aubrey Williams, the Director of the Labor Cabinet's Special Fund Division, dated July 22, 1987, Mr. Masters, with the authorization of Roxanna Miller, requested that he be furnished with all of her personnel records. Mr. Masters cited in support of his request the provisions of KRS 61.872(4), KRS 61.878(3) and KRS 61.884. He specifically requested that he be provided with:
". . . access to all personnel records of Roxanna Miller including but not limited to all records relating to personnel evaluations, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions and supporting documentation relating to said actions."
You replied to Mr. Masters in a letter dated July 29, 1987. You advised him that in addition to the personnel file which he has already reviewed, the Special Fund maintains files pertaining to Ms. Miller at both its Louisville and Frankfort offices. These files contain intra-agency memoranda and preliminary handwritten notes concerning Ms. Miller. In your opinion the intra-office memoranda and Mr. Williams' preliminary notes concerning Ms. Miller are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). The remainder of the material contained in the two Special Fund files would be made available to Mr. Masters upon request.
In his letter of appeal to this office dated August 3, 1987, Mr. Masters has questioned the partial denial of the material contained in the two Special Fund files concerning Ms. Miller. The material in question constitutes intra-office memoranda and Mr. Williams' preliminary handwritten notes pertaining to Ms. Miller. In the opinion of Mr. Masters the material which has been withheld relates to Roxanna Miller and it should have been made available to Ms. Miller and her attorney.
OPINION OF THE ATTORNEY GENERAL
The 1986 session of the Kentucky General Assembly amended KRS 61.878, a section of the Open Records Act, by the addition of the following provision (effective July 15, 1986) which has been codified as KRS 61.878(3):
"No exemption in this section shall be construed to deny, abridge or impede the right of a state employe, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. Such records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A state employe, applicant or eligible shall not have the right to inspect or to copy any examination."
From the documentation presented and on the basis of my conversation with you in my office on August 11, 1987, it is apparent that Ms. Miller is not only a state employee but an employee of the Labor Cabinet's Special Fund of which Mr. Williams is the director. Clearly Mr. Williams' preliminary handwritten notes pertaining to Ms. Miller are included among the materials which Ms. Miller as a state employee is entitled to inspect and copy as a result of the 1986 amendment to KRS 61.878. No doubt Ms. Miller could not have seen such preliminary material prior to the 1986 amendment to KRS 61.878 but the statutory amendment specifically states that it overrides any of the exceptions to public inspection set forth in KRS 61.878, at least where a state employee is involved.
Neither the documents which have been made available to this office nor my conversation with you has revealed the contents of the intra office memoranda contained in the Special Fund files concerning Ms. Miller. However, if those memoranda relate to Ms. Miller then the provisions of KRS 61.878 as amended are applicable and such material would be available to Ms. Miller for inspection and copying.
Thus on the basis of the 1986 amendment to KRS 61.878 by the General Assembly, which has been codified as KRS 61.878(3), it is the opinion of the Attorney General that the Labor Cabinet improperly denied the request to inspect documents submitted by the state employee and her attorney to the extent that the request pertained to preliminary handwritten notes concerning the employee which were prepared by her supervisor or boss and to the extent that the intra office memoranda contained in the employee's file pertained or related to that particular employee.
As required by statute, a copy of this opinion is being sent to the requesting party and the legal counsel of the state employee, Richard L. Masters, Esq. If you or the public agency decide not to comply with the conclusions set forth in this opinion, proceedings challenging this opinion may be instituted in the appropriate circuit court pursuant to KRS 61.880(5).