Request By:
Mayor Jennings H. Smith
411 W. Lincoln Trail Blvd.
P.O. Drawer 519
Radcliff, Kentucky 40159-0519
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Elizabeth S. Syger has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of her December 6, 1991, request for copies of a number of documents in your custody. Those records are identified as:
Any disciplinary charges against Mr. [Samuel Thomas] Sherrard, documents evidencing the outcome or resolution of those charges, internal affairs reports regarding Mr. Sherrard (including, but not limited to, complaints and final action taken), grievances or appeals filed by Mr. Sherrard, records of any disciplinary hearings directly involving Mr. Sherrard, and any other documents that indicate the reason(s) for Mr. Sherrard's separation from employment with the City of Radcliff.
In addition, Ms. Syger requested copies of Mr. Sherrard's "last two employment evaluations prior to his separation from employment."
You partially denied Ms. Syger's request in a letter dated January 2, 1992, relying on KRS 61.878(1)(a). Although you released Mr. Sherrard's employment records, including employment evaluations, you refused to release the remaining documents. It is your position that the disputed documents contain information of a personal nature, and that their public disclosure would constitute a clearly unwarranted invasion of personal privacy.
In a conversation with the undersigned on February 13, 1992, Mr. Terry Bennett, attorney for the City of Radcliff, explained that Mr. Sherrard was a former city police officer who, in the midst of disciplinary proceedings against him, resigned from the force. The city and Mr. Sherrard subsequently entered into a settlement agreement containing a "confidentiality clause." Under the terms of the agreement, the city was barred from disclosing that a disciplinary action had been filed against Mr. Sherrard. The city also agreed to expunge his personnel file of any disciplinary records, in exchange for which Mr. Sherrard agreed to release all claims against the city. Because of this agreement, the city feels constrained to withhold the requested records absent an opinion from this Office, or a court order, directing it to release them.
Ms. Syger asks that we review the city's partial denial of her request to determine if the city acted consistently with the Open Records Act. For the reasons set forth below, we conclude that the city improperly denied Ms. Syger's request.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Ms. Syger's request was procedurally deficient insofar as it was not issued within three working days. Some fifteen working days elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. Additionally, you did not include a brief explanation of how the exception cited applies to the records withheld, or forward a copy of the denial to this Office. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the issue raised in this open records appeal, we conclude that the city erroneously withheld the disciplinary charges leveled against Mr. Sherrard and the documents evidencing the outcome or resolution of charges. 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 conclude 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 Radcliff must release the documents evidencing the complaints or charges which gave rise to the disciplinary action against Mr. Sherrard and the documents evidencing the final action taken against him.
The only remaining question is whether the confidentiality clause contained in the settlement agreement precludes release of the requested documents. This Office has recently recognized that confidentiality, or nondisclosure, provisions violate the Open Records Act to the extent that they purport to make a document exempt from public inspection. OAG 92-18. As we noted at p. 6 of that opinion, "The public's right of access to a written settlement or contractual agreement between a public agency and an employee outweighs any privacy interests of the individual." Also see, OAG 78-35; OAG 79-413; OAG 88-43; OAG 90-36; OAG 91-20; OAG 92-17. Thus, in Courier Journal and Louisville Times Company v. McDonald, Ky., 524 S.W.2d 633, 635 (1974), in which the Kentucky Court of Appeals held that the public is entitled to know the terms of a settlement agreement to which a public agency is a party, the court noted that "the right of privacy does not extend to affairs with which the public has a legitimate concern," citing 62 Am.Jur.2nd, Privacy, sec. 1, p. 683. In that opinion, as in the OAGs cited above, the court and this Office recognized that a public agency or employee's desire to "keep secret" the terms of a settlement agreement is outweighed by the public's right to know. Accordingly, we find that the nondisclosure provisions of the agreement at issue in the instant appeal do not bar release of the charges or complaint which spawned the disciplinary action against Mr. Sherrard and the document or documents evidencing the final action taken against him.
With respect to the remaining documents requested, we find that Ms. Syger's appeal is moot. In our February 13 conversation with Mr. Bennett, the Radcliff city attorney, we were advised that no internal affairs report was generated in the course of the investigation into Mr. Sherrard's conduct, no grievances or appeals were filed by him, and no disciplinary hearings were held as a result of the charges against him. Hence, no documents exist which satisfy this portion of Ms. Syger's request. This Office has previously recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112. A request for such documents is therefore moot. OAG 88-44. Mr. Bennett further advises that you have been provided with all employment evaluations for Mr. Sherrard, including the last two evaluations prior to his separation from employment. As we have indicated, however, the City of Radcliff should make available for inspection the complaint or charges against Mr. Sherrard and the document evidencing the final action taken against him.
As required by statute, a copy of this opinion will be sent to Ms. Elizabeth S. Syger. Ms. Syger and the City of Radcliff may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).