00-ORD-100
April 18, 2000
In re: Larry Hood/Kentucky Commission on Human Rights
Open Records Decision
The question presented in this appeal is whether the Kentucky Commission on Human Rights properly relied on KRS 61.878(1)(h) and KRS 344.250(6) in denying Larry Hood’s March 11, 2000, request for a copy of the Cabinet for Families and Children’s response to his 1999 complaint alleging gender and race discrimination. For the reasons that follow, we affirm the Commission’s denial of Mr. Hood’s request on the basis of KRS 344.250(6).
In its March 16 response to Mr. Hood’s request, the Commission relied on KRS 61.878(1)(h), excluding from public inspection records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations, and KRS 344.250(6), excluding from public inspection information obtained by the Commission on Human Rights pursuant to its authority and pertaining to a particular person, without that person’s consent, “except as reasonably necessary to the conduct of a proceeding under . . . Chapter 344.” This appeal followed.
In his letter of appeal, Mr. Hood explained:
I was informed early this year that the Cabinet had responded. Also, in a written communication I was informed that a hearing had been scheduled and that a staff attorney for the Commission would represent me at the hearing. This is as provided by KRS 344.210(4). [L]ate last year I was informed that one of the goals of the Commission would be to seek a resolution through conference, conciliation, and persuasion. This is as provided by KRS 344.200(4).
He challenged the Commission’s denial of his request on several grounds, including his belief that:
1) it ignores the Franklin Circuit Court ruling . . . which says the language of KRS 61.878(3) is unambiguous and prevails;
2) KRS 344.250(6) is not an absolute prohibition on disclosure, allowing disclosure when “reasonably necessary to the conduct of a proceeding . . .” and does not appear to address information available to a complainant.
In closing, Mr. Hood noted that without such information, he cannot be expected to meaningfully participate in any conciliation efforts.1
In a supplemental response directed to this office, the Commission’s Enforcement Branch Manager, Leslie Jones, elaborated on the Commission’s position. She observed:
KRS 61.878(1)(l) authorizes public agencies to withhold records made confidential by enactment of the General Assembly. KRS 344.250(6) provides:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
KRS 344.200(4) states:
Except for the terms of the conciliation agreement, neither the commission nor any officer or employee thereof shall make public, without the written consent of the complainant and the respondent, information concerning efforts in a particular case to eliminate an unlawful practice by conference, conciliation, or persuasion whether or not there is a determination of probable cause or a conciliation agreement.
In OAG 85-5, the Attorney General construed KRS 344.200 and KRS 344.250 to exempt the vast bulk of agency record from public inspection, except in instances where the evidentiary hearing has already been held. See also, OAG 84-376. In such instances, the hearing transcript and the evidentiary record would be subject to inspection under the open records law. In the present action, the administrative and investigative proceeding has been initiated, but a probable cause determination has not yet been issued, and a hearing has not yet been held.
Ms. Jones noted that the Cabinet’s response expressly states that it was submitted with the understanding that it would remain confidential. Given the fact that the Cabinet’s response constituted “information obtained by the commission pursuant to its authority under “KRS Chapter 344, and that the Cabinet had not consented to its release, it was her position that the response fell squarely within the parameters of KRS 344.250(6). Reiterating that the Cabinet’s response was “made upon a justified expectation of confidentiality,” Ms. Jones concluded that “[v]iolation of this justified expectation would significantly undermine the Commission’s ability to obtain complete and candid responses to future investigative requests in this and other cases.”2
In a line of opinions dating from 1980, the Attorney General has construed the applicability of KRS 344.250(6) to records in the custody of the Commission on Human Rights and its sister agencies. Applying rules of statutory construction to the provision, in OAG 80-148 we concluded that:
Unless a proceeding has first been instituted under KRS Chapter 344, all information obtained by the Commission remains privileged. In such a case, the Commission must refuse to disclose such information without the person’s consent unless ordered to do so by a court of competent jurisdiction.
OAG 80-148, p. 2. We amplified upon this view in subsequent opinions, noting, for example, in OAG 84-376 that the purpose of this nondisclosure provision, like its federal counterpart:
is said to be to ensure that those directly involved in the conciliation process can fully and in good faith participate therein, uninhibited by any threat that their statements and actions will be released to anyone not otherwise privy thereto.
OAG 84-376, p. 3 citing 14 C.J.S. Supp., Civil Rights § 182 footnote 2 at p. 301.
Shortly thereafter, the Attorney General addressed the propriety of the Lexington—Fayette Urban County Government Human Rights Commission’s denial of a request to inspect records relating to complaints received in the preceding year. There, we observed that “what is available for public inspection is dependent upon the level at which the proceeding has progressed.” OAG 85-5, p. 3. At page 3 of the same opinion, we reasoned:
If the proceeding is at the level dealt with in KRS 344.200 and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. KRS 344.200(4) deals with a conciliation agreement and limits the information available to the “terms of the conciliation agreement.”
If the proceeding has progressed to the point of a hearing under KRS 344.210, then the hearing transcript which is required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.
See also OAG 88-55; 98-ORD-186; 98-ORD-192; 99-ORD-20.
The fact that the person seeking access to a record or records contained in the investigative file is the same person who originally filed the complaint does not alter this conclusion. In 99-ORD-20, the Attorney General affirmed the Kentucky Commission on Human Rights’ denial of complainant’s request for records substantiating the basis for its decision to dismiss her complaint. Acknowledging the legitimacy of the complainant’s concern that she and her attorney could not adequately address the issue of whether her complaint was properly dismissed if she were denied an opportunity to inspect the records compiled in the investigation, we nevertheless concluded that:
it is within the discretion of the Commission to determine when disclosure is “reasonably necessary to the conduct of a proceeding. . . .” KRS 344.250(6). Absent a clear abuse of this discretion, the Attorney General must defer to the Commission’s interpretation and application of this provision.
99-ORD-20, p. 3. We believe that the logic of this decision must be extended to the appeal before us. See also 99-ORD-224 (affirming Louisville and Jefferson County Human Relations Commission’s denial of complainant’s request to review all records in her closed file on the basis of KRS 344.250(6)).
Here, as in 99-ORD-224 and 99-ORD-20, the record which Mr. Hood seeks contains information obtained by the Commission pursuant to its authority under KRS 344.250 to conduct investigations of complaints. KRS 344.250(1). Accordingly, the Commission is prohibited from making the information public, without the Cabinet’s consent,3 “except as reasonably necessary to the conduct of proceedings under [Chapter 344].” KRS 344.250(6). We assume that the Commission properly exercised its discretion in determining that the disputed record is not “reasonably necessary to the conduct of a proceeding,” and affirm its denial of Mr. Hood’s request.
We are not persuaded by Mr. Hood’s argument that KRS 61.878(3) prevails over KRS 344.250(6), and compels the Commission to disclose the Cabinet’s response. KRS 61.878(3) 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.
Neither the courts nor this office have taken the position that a public employee enjoys an unrestricted right of access to records made confidential by state or federal enactment. KRS 61.878(1)(k) and (l). 4 For example, in 95-ORD-97, we 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 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 (emphasis added). The Attorney General purposely excluded state and federal confidentiality provisions incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l) from the general rule of enhanced public employee access to records that relate to them. KRS 344.250(6) is just such a confidentiality provision, and the commissioner and employees of the Commission are bound by it. KRS 344.250(6) is a specific confidentiality provision that is superior to the general provision found at KRS 61.878(3).
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.
Albert B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
# 217
Distributed to:
Larry Hood
188 Timberline Court
Nicholasville KY 40356
Catherine M. Ward
Enforcement Officer
Kentucky Commission on Human Rights
The Heyburn Bldg., 7th Floor
332 West Broadway
Louisville KY 40202
Leslie A. Jones
Enforcement Branch Manager
Kentucky Commission on Human Rights
The Heyburn Bldg., 7th Floor
332 West Broadway
Louisville KY 40202
Teresa Suter
Cabinet for Families and Children
275 East Main Street
Frankfort KY 40601
[1] Mr. Hood later supplemented his letter of appeal with additional information concerning alleged irregularities in the Commission’s processing of his complaint. He acknowledged that these supplemental remarks “do not really affect” his argument on appeal, but maintained that they “certainly affect[ ] the Commission’s arguments.” Because Mr. Hood’s remarks focus on the intake procedures employed by the Commission, rather than records access issues, we must agree that they have no bearing on the outcome of his appeal.
[2] The Commission relies on KRS 61.878(1)(h), (i), and (j) as additional statutory bases for denying Mr. Hood access to the Cabinet’s response. Inasmuch as we have determined that KRS 344.250(6), incorporated into the Open Records Act by KRS 61.878(1)(l), authorizes nondisclosure of the disputed record, we do not address these alternative arguments.
[3] We note that KRS 344.250(6) provides that it is unlawful for the Commission “to make public with respect to a particular person without his consent” information obtained in an investigation. KRS 344.250(6) (emphasis added). Although the Cabinet is not a “person” in the ordinary sense of the word, KRS 446.010(26) makes clear that the term “person” “may extend and be applied to bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships and joint stock companies.”
[4] These exceptions require public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation: and
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.