Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government properly relied on KRS 61.878(3) in denying Steve Lawrence's February 6, 1998, request for "a copy, or the opportunity to examine and make a copy of, the Division of Fire & Emergency Services tape recording of extension 691 made on November 28, 1997, form 6:00 a.m. until 7:00 a.m." Mr. Lawrence is a communications officer employed by the Division of Fire and Emergency Services, and is one of two public employees whose voices are heard on the tape. Based in part on the content of the conversation recorded, Mr. Lawrence was disciplined by LFUCG. He has appealed LFUCG's actions to the Civil Service Commission. It is the opinion of this office that LFUCG's reliance on KRS 61.878 (3) as an independent basis for denying Mr. Lawrence access to a record relating to him was misplaced, and that it erred in withholding the tape.
In denying Mr. Lawrence's request, LFUCG cited the final sentence appearing in KRS 61.878(3) which states:
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.
LFUCG characterizes this statement as "the exception found in KRS 61.878(3)." Because the tape "is the subject matter of a pending disciplinary matter," LFUCG argues, KRS 61.878(3)authorizes its nondisclosure.
This argument is fundamentally flawed. KRS 61.878(3) provides, in full:
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.
In construing this provision, the Attorney General has observed:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (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. The final sentence of the provision 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. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the [otherwise exempt] documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
95-ORD-97, p. 4. Echoing this view, we have stated, "KRS 61.878(3) invests public employees with a broader right of access to otherwise exempt records which relate to them, but in no way restricts their access to nonexempt records." 97-ORD-152, p. 10. In other words, KRS 61.878(3) does not provide an independent basis for denying a public agency employee access to public records. In view of the expansive wording of KRS 61.878(3), the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, we believe that it would be incongruous to construe this provision in such a way as to afford public employees a more limited right of access to nonexempt records than the public generally.
In 98-ORD-31, this office reviewed LFUCG's denial of a request for the same tape at issue in this appeal, and concluded that the tape was a nonexempt public record which must be made available for inspection. We rejected LFUCG's claim that the tape was properly excludable under KRS 61.878(1) (a) and KRS 61.878(1)(h). Inasmuch as this record is accessible to the public generally, it must be accessible to Mr. Lawrence specifically, the final sentence of KRS 61.878(3) notwithstanding.
Even were this not the case, we believe that the concluding sentence of KRS 61.878(3) would not authorize nondisclosure in this instance. Because Mr. Lawrence has been disciplined for conduct relating to the taped conversation, LFUCG cannot reasonably argue that he is the subject of ongoing criminal or administrative investigations relative to the tape. Mr. Lawrence has notified LFUCG of his intent to appeal these disciplinary measures, and has therefore reached the adjudicatory phase of the process. In 95-ORD-97, we held that the Cabinet for Human Resources could not rely on the final sentence of KRS 651.878(3) in denying a public employee's request for records relating to her to be used in a prospective personnel action. This office reasoned:
Consistent with the general rule of statutory construction codified at KRS 446.080(4), which provides that "all words and phrases shall be construed according to the common and approved usage of language," and the specific rule of strict construction of the exceptions to the Open Records Act, codified at KRS 61.871, we believe that the personnel actions which [the requester] initiated cannot properly be characterized as "ongoing criminal or administrative investigations by an agency" within the meaning of KRS 61.878(3). (Emphasis added.) The term "investigation" is defined as "a careful search or examination, systematic inquiry." Webster's New World Dictionary 741 (1974). "Adjudication," on the other hand, is defined as "the act of hearing and deciding (a case.. .dispute or problem)." Id., 17. These terms are by no means synonymous. Had it intended KRS 61.878(3) to apply to both the investigative and adjudicative phases of an administrative action, the legislature could have employed both terms. We assume that the legislature purposely employed the single term.
95-ORD-97, p. 5. Mr. Lawrence having initiated an administrative appeal of LFUCG's action, he cannot be denied access to the tape regardless of whether it is exempt or nonexempt. The concluding sentence of KRS 61.878(3) is simply inapplicable. LFUCG is directed to make arrangements for Mr. Lawrence to review the tape or furnish him with a copy.
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.