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 City of Burnside properly relied on KRS 61.878(1)(a) in denying Commonwealth Journal Staff Writer Tricia Bray's June 12, 2000, request to inspect "the charges brought against the [police] officer in the personnel hearing on June 12." For the reasons that follow, we find that the city's reliance on the cited exception was misplaced, and that records reflecting the charges preferred against the officer must be disclosed.
In a response dated June 14, 2000, Burnside City Clerk/Treasurer Cecil Goff, Jr., asserted that the requested record qualifies for exclusion under KRS 61.878(1)(a). He explained:
While there are certain authorities that indicate that once a disciplinary action has been taken against a public employee concerning certain preferred charges, i.e, Louisville vs. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App., 1982) and 96-ORD-177; OAG 83-41; OAG 83-366; OAG 78-133, these authorities relate to final action wherein an employee was disciplined. As you are aware from your attendance at the recent hearing, the Burnside City Council determined that the employee was "not guilty" of the charges. It is therefore our opinion that the disclosure of the charges would constitute a clearly unwarranted invasion of personal privacy, and should not be disclosed. Since Council has determined that the employee was not guilty of the charges, the cited section of the Kentucky Revised Statutes would prevent the disclosure of such of the charges as being an invasion of privacy.
Following receipt of Mr. Goff's response, Commonwealth Journal Regional Editor Carol Coffey initiated this appeal, asserting that "because the charges brought against this officer happened while he was performing his official function with the city, citizens have a right to know what those charges are, regardless of the council's final determination that he was 'not guilty.'" We agree.
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. " Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the court reasoned, "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." Board of Examiners , above. Echoing this view, in Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink , above at 828, 829. If then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in monitoring the city's removal of a prominent public official. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners , above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
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 , above; 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.
See also 98-ORD-45; 99-ORD-39.
This principle of law applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
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. "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.
Consistent with the principles set forth above, we find that the City of Burnside is obligated to disclose records reflecting the charges preferred against the police officer whose personnel hearing was conducted on June 12, 2000, notwithstanding the fact that the officer was exonerated. This decision comports with the statement of legislative policy codified at KRS 61.871, recognizing that "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others."
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.