Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Williamstown's denial of Ms. Jamie Baker-Nantz's September 4, 1992, request to inspect certain documents in the City's custody. Those records are identified as "any complaint, report, memo or other record regarding city employees who were obtaining cable TV service without charge and the disciplinary action in writing concerning each one of them." Ms. Baker-Nantz, editor of The Grant County News, explains that she recently learned that several city employees were receiving free cable TV service. She indicates that the City owns the cable, electric, water, and sewer services.
In a letter dated September 10, 1992, Mayor A. Frances Simpson denied Ms. Baker-Nantz's request. Relying on KRS 61.878(1)(a), she maintained that the records were excluded from the application of the Open Records Act. That statute authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Mayor Simpson took the position that the requested records contained information of a personal nature, and that their disclosure would constitute an unwarranted invasion of privacy.
The issue presented in this appeal is whether the City violated the Open Records Act in denying Ms. Baker-Nantz access to the requested records under authority of KRS 61.878(1)(a). For the reasons set forth below, and upon the authorities cited, we conclude that the City of Williamstown violated the Act in denying her request.
This Office has repeatedly recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 78-133; OAG 87-64; OAG 88-25; OAG 91-41; OAG 91-198. In OAG 91-41, at p. 5, we observed:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS 61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed, that it was outweighed by the public's right to be informed.
Similarly, in OAG 91-198, at p. 3, we opined:
The tortured evolution of [the privacy] exemption has been marked by repeated attempts to broaden its scope in a manner which is entirely inconsistent with the rule of strict construction mandated by KRS 61.882(4). The Attorney General has, however, consistently recognized that the privacy exemption cannot be invoked to protect a public employee against whom disciplinary action has been taken. . . . Accordingly, the public must be afforded access to records which reflect final disciplinary action against a public employee in matters pertaining to the performance of his public duties.
Finally, in OAG 78-133, at p. 3, we concluded:
If charges are made which are serious enough, if true, to require disciplinary punishment, the public has a right to know what the charges are. When final action has been taken on the charges there is no longer any reason or authority for keeping them confidential.
We therefore find that under the rule announced in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982), (holding, at p. 660, "The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon"), the City of Williamstown must release the documents evidencing the complaints or charges which gave rise to the disciplinary action against city employees who were receiving free cable TV and the documents evidencing the final action taken against them.
The City of Williamstown may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.