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 Cabinet for Families and Children properly relied on KRS 61.878(1)(a), KRS 61.878(1)(l), and KRS 18A.138 in denying J. Robert Cowan's request for documents "pertaining to any sexual harassment complaints, charges or legal actions, in any forum involving Cabinet employees within the last five years, including all documents relating to the resolution, settlement or judgment of said complaints, charges or legal actions." For the reasons set forth below, we find that the Cabinet's reliance on the cited provisions was misplaced, and that it is obligated to disclose complaints or charging documents, documents reflecting final agency action relative to those complaints, and any documents generated in the course of investigating those complaints if those documents were incorporated into final agency action. 1
In a letter to this office dated March 3, 1998, the Cabinet elaborated on its position. With respect to its argument that the records are shielded from disclosure by operation of KRS 61.878(1)(a), the Cabinet maintained that "matters involving sexual harassment issues are extremely sensitive to all persons involved, and those persons have a great privacy interest in having any information relating thereto protected." The Cabinet cited
Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992) in support of its argument that records "involving allegations of sexual misconduct [are] . . . exempt from disclosure under the personal privacy exception."
In addition, the Cabinet asserted that the requested records are exempt "under the statutory exception provided by KRS 61.878(1)(l) as it relates to the current Kentucky State Government Affirmative Action Plan, adopted pursuant to KRS 18A.138 and Executive Order 96-612." The Cabinet stated:
The Plan is incorporated by reference by the statute, and therefore, the connection between the Sexual Harassment Policy Statement of the plan and its confidentiality provisions is provided for by statute so as to allow for the invocation of the exemption afforded by KRS 18A.138.
That confidentiality provision is found at page 12 of the Kentucky State Government Affirmative Action Plan in a section entitled "Policy Statement Sexual Harassment, " and declares that complaints of sexual harassment "will be handled in as timely and confidential a manner as possible." It further provides:
Information concerning a complaint is considered private and will not be released to third parties or to anyone who is not involved with the investigation under the Open Records Act. Nor will anyone involved be permitted to discuss the subject outside the investigation. The purpose of this provision is to protect the confidentiality of the employee who files a complaint, to encourage the reporting of any incidents of sexual harassment and to protect the reputation of any employee wrongfully charged with sexual harassment.
The Cabinet argued that it is bound to observe this mandate.
Finally, the Cabinet maintained that Mr. Cowan's request implicates more than 2000 documents containing the names of victims, perpetrators, and witnesses, and personal information relating to these individuals including home addresses, telephone numbers, and social security numbers. Although the Cabinet did not specifically cite KRS 61.872(6), it urged this office to find that redaction of this information would impose an unreasonable burden on the agency.
It is the opinion of this office that the Cabinet for Families and Children does not state an adequate basis for denying access to the requested records. We address each of the arguments advanced by the Cabinet, beginning with its argument that those records are excluded from public inspection by operation of KRS 61.878(1)(a).
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of misconduct, in various factual contexts. Although we are mindful of the principle that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Board of Examiners at 328, we have generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. At pages 2 and 3 of 96-ORD-86, we observed:
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently 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 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists, supra; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
OAG 91-41, p. 5.
With specific reference to records relating to allegations of sexual harassment, we have stated:
The public's interest in insuring that "public servants are indeed serving the public" does not wane with the passage of time. Board of Examiners at 328. Conversely, "an individual . . . [who] inflicts a tort on his fellow man . . . forfeits his privacy to a certain extent." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). In weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant.
96-ORD-86, p. 3, 4. Recognizing that sexual harassment complaints "are of a uniquely sensitive nature," we nevertheless concluded that "conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. " 96-ORD-86, p. 4.
We affirm that position today as to both substantiated and unsubstantiated complaints of sexual harassment against employees of the Cabinet. On this subject, the Attorney General has reasoned:
Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action will evidence whether the public agency faithfully discharged its duties.
97-ORD-121, p. 8.
The fact that the Cabinet may have ultimately concluded that there is no basis for action against an individual employee has no bearing on whether these records must be released. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] . . ., if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p. 7. As the Supreme Court held in Board of Examiners , at 328, "In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good."
The Cabinet relies on Board of Examiners to support its view that records relating to allegations of sexual misconduct are exempt from public inspection. We believe that the Cabinet's position does not find support in that case. In Board of Examiners , the public agency had already disclosed portions of the record which demonstrated that it had performed its duties by investigating the allegations against the licensed psychologist accused of sexual misconduct "promptly, responsibly, and thoroughly." Board of Examiners at 328. In so doing, the agency had "effectively promoted the public interest in regulation." Id. The privacy interests which the Court focused on were those of the psychologist's former clients "who complained against [him], as well as other former clients involved in the investigation." The records withheld were "rife with details of clients' marital and familial relationships and psychological symptoms, as well as [the psychologist's] clinical impressions and course of therapy." Id. Although the Court recognized that allegations of sexual misbehavior "are largely personal, and are commonly treated circumspectly," it did not erect an impenetrable barrier to disclosure of records relating to such allegations. Id. In general, we believe that where the allegations concern a public employee, and arise in the context of performance of his or her employment, the public interest in regulation outweighs the employee's privacy interest. It is unacceptable for the Cabinet to deny access to all records relating to these charges.
This is not to say that individual notations appearing on those records may not be withheld on the basis of KRS 61.878(1)(a). On the issue of particularized justification for denial of access to individual entries on public records, this office has observed:
[A] generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of that law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the "basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest. " KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, "If any public record contains material which is not excepted under [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination."
Thus, exclusion of a particular entry on a public record must be "articulated in terms of the requirement of the statute." OAG 89-20, p. 3; see also, 94-ORD-144 (affirming 94-ORD-133), OAG 80-54 (holding that a police department cannot adopt a policy of withholding information relating to rape victims or victims of sex crimes under authority of KRS 61.878(1)(a)). [Footnote omitted.]
96-ORD-177, p. 3, 4. While the Attorney General has recognized that the identity of a complainant, and personally identifiable information, can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure, as where the complainant requests anonymity or could reasonably expect confidentiality, the Cabinet cannot adopt a policy of blanket nondisclosure relative to this or any other piece of information appearing in these records.
Turning to the Cabinet's second line of defense, we find that nondisclosure of these records is not authorized by KRS 61.878(1)(l) and KRS 18A.138. KRS 61.878(1)(l) permits public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly ." (Emphasis added.) The Cabinet maintains that this provision operates in tandem with KRS 18A.138 to authorize nondisclosure of all information relating to complaints of sexual harassment. KRS 18A.138(1) provides:
To ensure employment opportunity for all Kentuckians regardless of race, color, religion, national origin, disability, sex, or age, the affirmative action plan dated July 1, 1984, confirmed as part of Executive Order 84-59 continued in force by Executive Order 88-100, and incorporated herein by reference , shall be the official affirmative action plan for Kentucky state government.
(Emphasis added.) The affirmative action plan dated July 1, 1984, confirmed as part of Executive Order 84-549 and continued in force by Executive Order 88-100, contains no references to sexual harassment. It is this plan which was enacted by the General Assembly. Neither the governor in an executive order, nor the Personnel Cabinet in amending the Affirmative Action Plan, addressed the issue of sexual harassment until 1992.
In Executive Order 92-1059, Governor Brereton Jones announced:
This Administration condemns sexual harassment. The affirmative action plan shall outline this state's policy against sexual harassment and provide guidelines for enforcing such policy.
The Personnel Cabinet responded by introducing a "Police Statement [on] Sexual Harassment" to the state's Affirmative Action Plan. It is this policy statement which prohibits disclosure of "information concerning a complaint" of sexual harassment, and excludes this information from the Open Records Act. Although it is unclear when this language was added after Governor Jones issued Executive Order 92-1059, it appears as part of the Affirmative Action Plan dated February 4, 1997, and signed by the Cabinet's Secretary, Robert S. Peters. 2 Neither Governor Jones's Executive Order 92-1059 nor Governor Patton's Executive Order 96-612 were enacted into law in KRS 18A.138 or elsewhere.
Whatever binding effect the plan may have on state agencies generally, having not been adopted by the General Assembly in KRS 18A.138, it does not operate as a statutory enactment of that body prohibiting, restricting, or otherwise making confidential records relating to information concerning complaints of sexual harassment in state government. The information is therefore not excluded from public inspection by KRS 61.878(1)(l). The Affirmative Action Plan which has been enacted by the General Assembly is the July 1, 1984 plan, and, as noted, that plan contains no reference to sexual harassment, and no ban on disclosure of records relating to complaints of sexual harassment. 3 The Cabinet's reliance on these provisions was therefore misplaced.
Finally, we find that the Cabinet failed to meet its statutory burden of proof in arguing that Mr. Cowan's request is unreasonably burdensome. The Cabinet notes that his request implicates "in excess of 2000 documents" and that "most documents would require multiple reduction [sic] to remove identifying information which could not be done without imposing an unreasonable burden. . . ." We do not agree.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
This provision is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. We have also recognized, however, that:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-375, p. 4. In determining whether an open records request is unreasonably burdensome, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function.
In the appeal before us, the Cabinet has not shown, by clear and convincing evidence, that Mr. Cowan's request is unreasonably burdensome. Although the Cabinet has specifically described the number of documents implicated by the request, it has offered no proof relative to the difficulty in accessing the records, or the problems associated with redacting exempt information from the records, assuming for the sake of argument that the records contain exempt information. The Cabinet therefore fails to meet its statutory burden of proof in denying Mr. Cowan's request on this basis. As this office has observed:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation. . . . It is stressed that this Office has previously opined that a request to inspect "10,000 cases is certainly 'voluminous,'" but not necessarily unreasonably burdensome. OAG 84-278, p. 2.
OAG 90-112, p. 4. The Cabinet should bear these observations in mind in responding to future open records request.
In sum, we find that the Cabinet for Families and Children improperly denied Mr. Cowan's request for records pertaining to sexual harassment complaints against Cabinet employees. Although particular entries may be redacted from those records if the basis for nondisclosure is articulated in terms of the requirements of KRS 61.878(1)(a), that is to say, particularized justification is given for redacting the entries, the Cabinet cannot properly adopt a blanket policy of nondisclosure relative to these records pursuant to KRS 61.878(1)(a). Nor can the Cabinet properly rely on KRS 61.878(1)(l) and KRS 18A.138 in denying Mr. Cowan access to these records. The policy barring disclosure of information concerning a sexual harassment complaint against a state employee, which appears in the Affirmative Action Plan, has not been enacted by the General Assembly, and therefore does not override the mandatory disclosure provisions of the Open Records Act. Finally, the Cabinet has not demonstrated, by clear and convincing evidence, that Mr. Cowan's request is unreasonably burdensome. It therefore cannot invoke KRS 61.872(6) as an appropriate basis for denying him access to the disputed records.
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.
# 167
Distributed to:
J. Robert Cowan250 West Main Street, Suite 910Lexington KY 40507
Teresa M. SuterExecutive DirectorOffice of Program SupportCabinet for Families and Children275 East Main StreetFrankfort KY 40601
Charles P. Lawrence, Assistant CounselOffice of the GeneralCounsel Cabinet for Families and Children275 East Main StreetFrankfort KY 40601
Footnotes
Footnotes
1 In its supplemental response, the Cabinet acknowledged that records generated in the course of legal proceedings involving charges of sexual harassment do not implicate privacy concerns, and are not otherwise excluded from inspection. We assume that these documents were disclosed to Mr. Cowan. If not, the Cabinet should immediately make arrangements for him to inspect them, or furnish him with copies.
2 That this statement did not appear in the 1984 plan is confirmed by introductory comments appearing in the 1996 plan, signed by Secretary Peters in February, 1997. In a section entitled "A Brief History of Kentucky State Government's Affirmative Action Plan," we find the following excerpt:
The Affirmative Action Plan for Kentucky State Government originated in 1984 with the issuance of Executive Order 84-549 by Governor Martha Layne Collins. Statewide goals under the Affirmative Action Plan were based on the results of the 1980 Kentucky Census. Therefore, a critical element of the plan called for a state government workforce that reflected the state population as a whole. Individual agencies were directed under the Executive Order to develop individual agency plans that were consistent with the overall state plan, including strategies for increased employment of minorities and females.
Executive Order 88- 100 by Governor Wallace G. Wilkinson continued the Affirmative Action program for state government by declaring that the previous Executive Order and its requirements remained in force throughout state government. The 1988 Kentucky General Assembly confirmed and strengthened this action by the passage of legislation mandating the Affirmative Action Plan for state government, with subsequent signature by Governor Wilkinson. The original sponsor of this legislation was Senator Georgia Davis Powers of Louisville, a long-time civil rights advocate of the Commonwealth. This statute today is codified in KRS 18A.138.
Governor Brereton C. Jones issued Executive Order 92-1059 in 1992 which maintained the Affirmative Action Plan in effect. This Executive Order also defined and denounced sexual harassment. A further requirement under the 1992 plan was that state cabinets and agencies develop and include policy statements regarding the Americans With Disabilities Act (ADA). The state plan included a policy statement that detailed steps for inclusion of persons with disabilities in the state workforce, including providing reasonable accommodations in the administration of tests for persons with disabilities. State cabinets and agencies conducted self-assessments as required under Title II of the Americans with Disabilities Act in 1992.
Governor Paul E. Patton issued Executive Order 96-612 on May 15, 1996, which keeps the Affirmative Action Plan in place for Kentucky State Government, except as modified due to changes in federal and state law. Governor Patton's Executive Order includes directives for the provision of technical assistance by the Secretary of the Personnel Cabinet "as may be deemed appropriate to accomplish the purposes identified by the affirmative action plan." The Governor's directive calls for annual analysis of examination and selection procedures to ensure that persons protected by anti-discrimination laws and regulations are not adversely affected by these procedures. The directive also requires "the monitoring of inrange appointments and salary adjustments to ensure that standards are uniformly applied to prevent salary disparity." The Governor's Executive Order further requires that the Secretary of the Personnel Cabinet report semi-annually to the Office of the Governor "regarding actions taken pursuant to the affirmative action plan."
3 It is troubling that the Cabinet could, or would, exclude these records from the mandatory disclosure provisions of the Open Records Act by a policy statement which has not been subjected to legislative review. Such an action raises a serious issue under KRS 13A.130 as an attempt to "limit a statute," namely, the Open Records Act, by internal policy, memorandum, or other form of action.