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 Workforce Development Cabinet properly relied on KRS 61.878(1)(i) in denying Stephen G. Bolton's May 14, 1998, request for records relating to allegations of misconduct involving his client, Lawrence Molands. For the reasons that follow, we find that although the Cabinet's reliance on the cited exemption was misplaced, nondisclosure of the records identified in Mr. Bolton's request was appropriate under KRS 61.878(3) because the incident which prompted the allegation is currently under investigation.
Mr. Bolton requested, but was denied access to:
any and all statements whether written or recorded, memoranda, correspondence, or any other note or writing or tangible item such as photographs, recordings or other media produced by the inquiry of Ombudsman, William Denton, as the result of his inquiry into an alleged, improper touching of a female student on or about April 10, 1998 by employee Lawrence Molands.
In denying the request, Sue G. Simon, Office of General Counsel, cited KRS 61.878(1)(i) explaining that the requested records are "identified as preliminary," and are therefore unavailable for inspection. Following the commencement of this appeal, Ms. Simon submitted a supplemental response to this office in which she elaborated on the Cabinet's position. Ms. Simon tendered an affidavit from Gary F. Brunker, Director of the Office of Personnel Services, "evidenc[ing] the preliminary nature of the requested documents."
In his affidavit, Mr. Brunker stated that upon learning that a student at Kentucky Tech-Breathitt County Area Technology Center had filed a criminal complaint against Mr. Molands, the Cabinet's ombudsman, William Denton, conducted an on-site investigation of the student's charges. On April 10, 1998, Mr. Denton questioned employees and students at Kentucky Tech-Breathitt County about these charges. The resulting witness statements are currently under review by the Cabinet, and no final action has been taken in this matter. Mr. Brunker reiterated that the records are preliminary and therefore excluded from inspection by operation of KRS 61.878(1)(i).
It is the opinion of this office that the Cabinet's reliance on KRS 61.878(1)(i) was misplaced, but that nondisclosure of the disputed records is nevertheless justified on the basis of KRS 61.878(3). That statute 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. 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), [1]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 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.
In 93-ORD-37, the Attorney General affirmed the Cabinet for Human Resources' denial of an attorney's request for records relating to the Cabinet's investigation into allegations against her client on the basis of the concluding sentence of KRS 61.878(3). We reached the same result in 93-ORD-74. In that appeal, an attorney challenged the Department of Education's denial of his request for records relating to its investigation into possible violations of state school law by his client. We distinguished 93-ORD-19 and 93-ORD-24 in which this office held that a public agency employee was entitled to review records relating to a complaint filed by the employee, and an investigation initiated at his request.
Mr. Molands 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. The records which Mr. Bolton requests on his behalf relate to an ongoing investigation conducted by the Workforce Development Cabinet, and his request was therefore properly denied. Although the right of access granted a public agency employee by KRS 61.878(3) overrides the exception found at KRS 61.878(1)(i) when the employee requests access to records relating to him, the concluding sentence of KRS 61.878(3) suspends this right when the employee is the subject of an ongoing investigation. 93-ORD-37 and 93-ORD-74 are therefore controlling.
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.