Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education Professional Standards Board properly relied on KRS 61.878(1)(i), misidentified as KRS 61.878(1)(h), in denying David H. Dixon's June 14, 2000, request for a copy of the report prepared by EPSB investigator, Bob Pace, into allegations against Mr. Dixon of misconduct. For the reasons that follow, and upon the authorities cited, we find that EPSB's reliance on the cited exception was misplaced.
In a response dated June 16, 2000, EPSB attorney Allison Weber advised Mr. Dixon that EPSB had been unable to locate a copy of Mr. Pace's report in its offices. Ms. Weber indicated that she was attempting to determine if the attorney who handled Mr. Dixon's appeal had retained custody of the report, or if it had been archived, and that once located, she would advise him whether it was subject to disclosure. Having apparently received no further correspondence from Ms. Weber, on July 25 Mr. Dixon initiated this open records appeal.
In a supplemental response directed to this office following commencement of Mr. Dixon's appeal, Ms. Weber elaborated on EPSB's position. She explained that the report had not been retained by the attorney who handled the appeal, and that on July 20 EPSB requested Mr. Dixon's archived file. One day after Mr. Dixon initiated his open records appeal, the file, which included the investigative report, arrived in Ms. Weber's office. After reviewing the file, she concluded that access must be denied on the basis of KRS 61.878(1)(i). It was her position that the archived file was the working file of the EPSB prosecuting attorney, and the investigator's report a preliminary document "because it was not presented to the board or incorporated into any final report." Ms. Weber indicated that Mr. Dixon's case ended in a default order.
It is the opinion of this office that although EPSB advanced a good faith argument in support of its denial, its reliance on KRS 61.878(1)(i) as the statutory basis for denying Mr. Dixon access to the investigative report relating to him was misplaced, this matter having been finally resolved by entry of a default order. We believe that 97-ORD-87 is controlling. In 97-ORD-87, this office addressed the applicability of KRS 61.878(3) to former public agency employees. A copy of that decision is attached hereto and incorporated by reference. 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.
In construing KRS 61.878(3), the Attorney General has observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or eligible [s] on a register. " 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. With specific reference to the rights of former public agency employees to access records that relate to them, this office then concluded:
By its express terms KRS 61.878(3) extends to public agency employees, applicants for employment, and eligibles on a register. Although the provision does not contain a specific reference to former employees, we believe that its expansive wording, coupled with 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 statutory 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, compel this result. The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to insure that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statutes, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law." Frankfort Publishing Co., Inc. v Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992) citing Kentucky Tax Commission v Sandman, 300 Ky. 423, 189 S.W.2d 2407 (1945).
It is simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. Former employees clearly have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them. Former public employees, whether they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment, are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment. Any other reading of KRS 61.878(3) is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole.
Id.; see also 97-ORD-161; 97-ORD-140.
Based on the analysis set forth in this line of decisions, we conclude that EPSB improperly relied on KRS 61.878(1)(i) in denying Mr. Dixon's request. As a former public agency employee, he is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to him ." KRS 61.878(3) (emphasis added). Ms. Weber acknowledges that EPSB's investigation is concluded, and the matter resolved by entry of a default order. EPSB having advanced no other statutory basis supporting nondisclosure, we find that it must disclose Mr. Pace's investigative report into the allegations against Mr. Dixon.
In addition, we find that an inordinate amount of time elapsed between the date on which Mr. Dixon made his request, June 14, and the date on which EPSB attempted to retrieve the archived record, July 20. While it is understood that inquiries were directed to the attorney who prosecuted the action to determine if he or she retained custody of the report, thus postponing archival retrieval, we conclude that the one month plus delay constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency
These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. With reference to the duty of a public agency to afford a requester timely access to records, we have concluded:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records . . . KRS 61.872(5) normally requires an agency to notify the requester an designate an inspection date not to exceed three days from agency receipt of the request.
. . . We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
93-ORD-134, p. 11 and 12.
The Education Professional Standards Board fails to offer any explanation for the one month plus that elapsed between the date of receipt of Mr. Dixon's records application and the date on which it first attempted to retrieve the record from archives. Once EPSB submitted its request to archives for a copy of the pertinent file, the file was produced within four business days. Absent a reasonable explanation for the delay, we find that EPSB's delay in responding to the request failed to comply with the requirements of 61.880 (1). We urge the Education Professional Standards Board to review the cited provisions to insure that future responses conform to the Open Records Act.
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 proceedings.