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 Kentucky Commission on Human Rights violated the Open Records Act in partially denying James L. Hood's September 15, 2000, request for copies of the complaint, response, conciliation agreement, and any other materials related to Goins v. Department of Corrections KCHR 3228-E. For the reasons that follow, and under the authorities cited, we conclude that the Commission's partial denial of Mr. Hood's request was consistent with KRS 344.250(6).
In a response dated September 29, 2000, Commission staff assistant Leslie A. Jones provided Mr. Hood with the complaint of discrimination filed by Commissioner Edgar S. Goins, Sr., on March 1, 1994, the case summary, case record and closing, and conciliation agreement entered on September 3, 1999. However, Ms. Jones denied Mr. Hood's request for the Department of Corrections' response to the complaint, and related investigative materials, on the basis of KRS 344.250(6), and KRS 61.878(1)(h), (i), and (j). This appeal followed.
In a supplemental response directed to this office following commencement of Mr. Hood's appeal, the Commission's managing attorney, Pamela G. Wilson, elaborated on the agency's position. Ms. Wilson focused on the application of KRS 61.878(1)(h), (i), and (j), as well as KRS 61.878(1)(a), to the records withheld, explaining:
The Department of Corrections' Response and the related investigative materials acquired by this Agency during the course of its investigation . . . contain highly personal and confidential information concerning individuals, including but not limited to names, social security numbers, phone numbers and addresses. Additionally, said "related material," i.e., the investigative file, contains notes, correspondence with private individuals, and preliminary recommendations, and memoranda containing opinions formulated and recommendations made concerning the Complaint and investigation.
Ms. Wilson did not elaborate on the Commission's position relative to invocation of KRS 344.250(6). Nevertheless, it is this provision that is, in our view, controlling.
On appeal, Mr. Hood contests the Commission's partial denial of his requesting, asserting that "the privacy of no actual individual is threatened in any way." Continuing, he observes:
This constitutes an extraordinary abuse of power. A public agency can make a most serious charge . . . without ever having to offer to the public any documentation or data suggesting why the charge was made. The other public agency can enter into a conciliation agreement denying everything[,] again never offering the public any documentation or data supporting its position.
Relying on 98-ORD-45, an open records decision involving access to records relating to sexual harassment complaints filed with the Cabinet for Families and Children, Mr. Hood concludes that the Commission's position is tantamount to "a statement that the public has no legitimate interest in how public agencies conduct their operations, in this case both the Commission's and the Corrections Department's." Because no private individuals or businesses are involved, Mr. Hood urges the Attorney General to require full disclosure of all information supporting the Commission's complaint, and all information supporting Corrections' "accepted, full denial of the charge."
As noted above, the confidentiality provision codified at KRS 344.250(6) compels us to affirm the Commission's partial denial of Mr. Hood's request, notwithstanding the general rule of openness for the public good. In balancing the competing interests of the public's right to know and the Commission's need to ensure absolute candor in the conciliation process, the legislature has weighed in favor of extending statutory protection to "information obtained by the commission pursuant to its authority under [KRS 344.250]" without reference to the identity of the complainant and respondent. This provision, coupled with KRS 344.200(4), prohibiting disclosure of all "information concerning efforts in a particular case to eliminate an unlawful practice by conference, conciliation, or persuasion" without the written consent of the complainant and respondent, except for the terms of the conciliation agreement itself, provide sufficient authority for the Commission's partial denial of Mr. Hood's request.
In 00-ORD-100, this office engaged in an analysis of the Commission's reliance on KRS 344.250(6) and KRS 344.200(4), both incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and concluded that the Commission properly exercised its authority to deny access to the Cabinet for Families and Children's response to a 1999 complaint alleging gender and race discrimination. We examined the evolution of this office's interpretation of these provisions, beginning with the express language of the confidentiality provisions themselves. With reference to complaints of discrimination and conciliation agreement, KRS 344.200(4) provides:
If the staff determines, after investigation, or if the commission determines after the review provided for in subsection (3) of this section that there is probable cause to believe that the respondent has engaged in an unlawful practice, the commission staff shall endeavor to eliminate the alleged unlawful practice by conference, conciliation, and persuasion. The terms of a conciliation agreement reached with a respondent may require him to refrain from the commission of unlawful discriminatory practices in the future and make any further provisions as may be agreed upon between the commission or its staff and the respondent. If a conciliation agreement is entered into, the commission shall issue and serve on the complainant an order stating its terms. A copy of the order shall be delivered to the respondent, the Attorney General, and any other public officers and persons that the commission deems proper. 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 .
(Emphasis added.) With reference to the Commission's investigatory powers and the confidentiality of records obtained thereunder, KRS 344.250(6) provides:
It is unlawful for a commission 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.
(Emphasis added.)
At pages 4 and 5 of 00-ORD-100, we observed:
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:
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:
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:
See also OAG 88-55; 98-ORD-186; 98-ORD-192; 99-ORD-20.
In OAG 88-55, we modified OAG 84-376 and OAG 85-5 to recognize that a complaint that culminates in a conciliation agreement is not "information obtained by the commission pursuant to its authority under this section," within the meaning of KRS 344.250(6), and therefore does not qualify for exclusion from public inspection under this provision.
Given the expansive language of KRS 344.250(6), this office has recognized on several occasions that the fact that the person seeking access to a record or records obtained by the Commission in discharging its duties under Chapter 344 is the person who originally filed the complaint does not alter the analysis or compel a different result. By the same token, our analysis is not altered by virtue of the identity of the complainant or respondent. The purpose of achieving candor in the investigation and conciliation process which underlies the confidentiality provision, the legislature has concluded, must be promoted regardless of whether the complainant is a commissioner for the Kentucky Commission on Human Rights and the respondent a public agency, or both parties are private individuals or entities. The statute does not exclude public participants engaged in the conciliation process, and we are not at liberty to read such an exclusion into the statute. Contrary to Mr. Hood's apparent belief, this conclusion cannot be construed as "a statement that the public has no legitimate interest in how public agencies conduct their operations," but as a legislative recognition that the greater public good is served by promoting the conciliation process through frankness and candor, and extending assurances of confidentiality toward this end. With respect to human rights commissions organized under Chapter 344, the legislature has determined that the public's right to know is adequately served by disclosure of only those records identified in the cited open records decisions.
Because KRS 344.250(6) and KRS 344.200(4) are so clearly controlling on the issue of records access, we must conclude that 98-ORD-45, upon which Mr. Hood so heavily relies, has no relevance to this appeal. There, our analysis turned on the application of KRS 61.878(1)(a) and KRS 61.878(1)(l), incorporating KRS 18A.138 into the Open Records Act, to a request for documents pertaining to sexual harassment complaints involving employees of the Cabinet for Families and Children. Because the Cabinet's reliance on KRS 18A.138 as a basis for denying access was determined to be misplaced, resolution of the appeal ultimately turned on the application of KRS 61.878(1)(a), the privacy exception to the Open Records Act, to the disputed records. We concluded that a blanket denial of access to the records based on KRS 61.878(1)(a) was improper insofar as the public's interest in monitoring public agency response to allegations of sexual harassment leveled against public employees was superior to the employee's privacy interests. No valid confidentiality provision was invoked as a basis for denying access in 98-ORD-45. Conversely, in the appeal before us KRS 344.250(6) and 344.200(4) operate as a shield from disclosure of information obtained by the Commission in the course of an investigation, and information concerning efforts in a particular case to eliminate an unlawful practice by conference, conciliation, or persuasion. It is the opinion of this office that the nondisclosure of the Corrections Cabinet's response to the Commission's complaint, and related information obtained by the Commission, in the discharge of its duties under Chapter 344, was fully authorized by these provisions, and 98-ORD-45 has no bearing on the outcome of this appeal. We therefore affirm the Kentucky Commission on Human Rights' disposition of Mr. Hood's open records request.
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.