Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Luther Luckett Correctional Complex's denial of Franklin Eldridge's September 7, 1995, request to inspect and copy "any records pertaining" to him. Mr. Eldridge is a corrections officer at Luther Luckett, and his request was made under the Open Records Act. In a response dated September 8, 1995, Warden Steve Berry advised Mr. Eldridge as follows:
I have received reports indicating that you may have violated institutional policy and procedure. These are preliminary reports and part of an ongoing investigation therefore they do not fall under the open records law.
. . .
Regarding the basis for the denial of your request, please review KRS 61.878.
It was Warden Berry's position that the requested records were exempt from public inspection because they were generated in the course of an ongoing administrative investigation. At the time Mr. Berry's request was made, that investigation had not been concluded.
In his letter of appeal to this office, Mr. Eldridge challenges Warden Berry's position, arguing that he is entitled to inspect these records pursuant to KRS 61.878(3). He asks that we review the agency's denial of his request to determine if its actions violated the Open Records Act. For the reasons set forth below, and upon the authorities cited, we conclude that although its response was procedurally deficient, Luther Luckett Correctional Complex properly denied Mr. Berry's request.
KRS 61.878(3) was amended by the 1982 General Assembly, and now provides:
No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, 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. The 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 public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
(Emphasis added.) The provision extends, by its express terms, to all "public agency employee[s]," and overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (j), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee or on his behalf. The final sentence authorizes an agency to withhold examinations and 'documents relating to ongoing criminal or administrative investigations by [the] agency' even when they are requested by the public agency employee and relate to him. Although as a rule of general application KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee, where the employee is under investigation and the documents relate to that investigation the request can properly be denied. Compare, 93-ORD-19 and 93-ORD-24 (holding that a public agency employee is entitled to review records relating to a complaint filed by the employee with an affirmative action office). Mr. Eldridge is a "public agency employee," within the meaning of KRS 61.878(3), and may review any record which relates to him with the exception of examinations and documents relating to ongoing criminal or administrative investigations by an agency. 1 The records which he requested relate to an ongoing administrative investigation conducted by the facility, and his request was therefore properly denied. See also 93-ORD-37; 93-ORD-74.
It should, however, be noted that Warden Berry's response was procedurally deficient. Although he describes the records withheld as "preliminary reports and part of an ongoing investigation," and references KRS 61.878 as "the basis for the denial of" Mr. Eldridge's request, he does not cite the specific exception(s) authorizing disclosure. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That 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 record 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.
To the extent that he failed to cite the specific exceptions authorizing nondisclosure, Warden Berry's response was procedurally deficient. The records requested by Mr. Eldridge are "public records, " within the meaning of KRS 61.870(2), albeit exempt public records per KRS 61.878(1)(h). A request for those records triggers the procedural requirements of the Act. We urge Warden Berry to review the cited provisions to ensure that future responses conform to the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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