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 violated the Open Records Act in partially denying Larry Hood's March 5, 1998, request for "transcripts or copies of tapes investigating [his] grievance. ..." In a letter dated March 10, 1998, Teresa M. Suter, Executive Director of the Cabinet's Office of Program Support, responded to Mr. Hood's request, advising him as follows:
This information has not been approved for release at this time. The process will take longer than the three (3) work day period. Please be assured that as material is approved you will be afforded an opportunity to obtain copies of tapes or transcripts.
Shortly thereafter the Cabinet formally denied Mr. Hood's request. Relying on KRS 61.878(1)(h) and KRS 61.878(3), Ms. Suter asserted that "the material requested is currently a part of an on-going administrative investigation that is being conducted by the Office of Inspector General." She indicated that the records would "not be released until that investigation or any law enforcement action relating thereto is completed, or a decision to take no action is made." This appeal followed. 1
In a fax transmission to this office dated April 14, 1998, Charles P. Lawrence, Assistant Counsel in the Cabinet's Office of General Counsel, notified the Attorney General that the Cabinet would release the requested records. Mr. Lawrence indicated that:
The Cabinet has decided to comply with his requests, based upon his clarification that he desired to know about requests for registers, not the actual registers. Also due to the fact that the investigation concerning which Mr. Hood had requested investigative tapes is now final and not subject to further investigation, the access to the tapes is being provided.
The compliance of the agency should now make Mr. Hood's appeal moot.
Based on the Cabinet's statements, on April 14, 1998, this office drafted, and was prepared to issue, a letter declaring this appeal moot pursuant to 40 KAR 1:030 Section 6.
At 2:41 p.m., on April 15, this office received a second fax transmission from Mr. Lawrence. In it, he advised:
The Cabinet for Families and Children, upon further consideration of the above subject appeal of Mr. Hood, has issued a revised letter (copy attached) to him concerning his request for "transcripts or copies of tapes" of persons interviewed by the Cabinet relating to the investigation of his grievance. The Cabinet is advising Mr. Hood that he may have access to the transcripts of interviewee statements with the identity and any identifying information relating to the interviewees redacted in order to prevent a clearly unwarranted invasion of personal privacy of the interviewees pursuant to KRS 61.878(1)(a), concerning which they had a reasonable expectation. The Cabinet's investigation was done pursuant to Mr. Hood's grievance and did not involve any personnel action concerning Mr. Hood. Mr. Hood has received the final report of the Cabinet and a letter from the Secretary as to the implementation of the recommendations made as a result of his grievance.
The letter to Mr. Hood, referenced in the Cabinet's amended response, stated:
This is to amend my letter to you dated April 14, 1998. The Office of Program Support will be releasing the investigative transcripts to you instead of the audio tape recordings of the investigation conducted concerning your grievance. In accordance with KRS 61.878(1)(a) and (4), the identity and any identifying information of the interviewees are being withheld in order to avoid a clearly unwarranted invasion of personal privacy. These documents are being made available only pursuant to your specific open records request and are specifically for your use, and should not be distributed throughout your office or the CHR Building. Retaliation or harassment against anyone that provides testimony or assists in an investigation is strictly prohibited.
The undersigned assistant attorney general immediately contacted Mr. Lawrence to advise him that this appeal had been mooted by disclosure of the disputed records. Mr. Lawrence declined to reconsider the Cabinet's position, stating that the Cabinet would await further action by Mr. Hood. After confirming that the materials redacted appeared in records relating to Mr. Hood and his grievance, and that the investigation into his grievance had been closed, we informed Mr. Lawrence that under the clear mandate of KRS 61.878(3), the Cabinet's position was legally indefensible. The Cabinet's position remained unaltered.
For the reasons that follow, we find that the Cabinet for Families and Children violated the Open Records Act in partially denying Mr. Hood's request. We also find that having formally agreed to disclosure of all records which Mr. Hood requested, and having so notified the Attorney General, the Cabinet was foreclosed from reneging on its agreement.
KRS 61.878(3) mandates public employee access to records relating to them by providing:
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:
When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4. KRS 61.878(3) extends, by its express terms, to public agency employees. Mr. Hood is a public agency employee. It applies to "any record including preliminary and other supporting documentation that relates to [the public employee making the request]." The Cabinet acknowledges that the disputed records relate to Mr. Hood and his grievance. The exception for "documents pertaining to ongoing criminal or administrative investigations by an agency" expires when the investigation is concluded. The Cabinet acknowledges that the investigation into Mr. Hood's grievance is closed. Mr. Hood is therefore entitled to unredacted copies of the records which he requested and which relate to him.
KRS 61.878(3) does not authorize a public agency to impose restrictions on the requester's use of the records, or limit distribution of those records. The law assumes, and we trust, that they will be used in a responsible and constructive manner, and not to retaliate or harass other employees who provide testimony or assist in an investigation.
In closing, we reiterate that this office, acting in a quasi-adjudicative role in open records disputes, relies on the truthfulness and accuracy of representations made to us by a public agency. We hold the agency to these representations in resolving an appeal. We therefore frown on an agency's attempt to breach its commitment to disclose records, particularly where the legal position it takes to support a new course of action is untenable. We urge the Cabinet for Families and Children to bear these observations in mind in future open records matters.
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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