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 State Police violated the provisions of the Open Records Act in partially denying Jeffrey S. Richards' June 13, 2001, request for a copy of his personnel file, "including but not limited to a complete unredacted copy of a background report done by Officer Fyffe in May of 2000." For the reasons that follow, and upon the authorities cited, we conclude that KSP violated the Act in partially denying Mr. Richards' request.
In a response dated June 14, 2001, KSP records custodian Diane H. Smith provided Mr. Richards with a copy of his personnel file and a redacted copy of his background investigation. She explained that "[p]ursuant to KRS 61.878(1)(a), all home addresses, social security numbers, telephone numbers and other identifying information have been redacted. " Ms. Smith advised that KRS 61.878(1)(a) "applies to [Mr. Richards'] request because the documents contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Dissatisfied with KSP's response, Mr. Richards initiated this open records appeal.
In a supplemental response directed to his office following commencement of Mr. Richards' appeal, KSP legal counsel James M. Herrick amplified on the agency's position. He explained:
It is standard procedure for the KSP to redact personal identifying information of individuals other than the person making the request for records, as the public disclosure of this information would constitute a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a). Furthermore, the confidentiality of this personal information ensures that individuals contacted in connection with employee background checks provide candid information without fear of reprisal.
Mr. Herrick reiterated that the only information redacted from the background investigation report was home address, social security number, telephone number, "and other identifying information of persons providing information for the background check."
It is the opinion of this office that KSP's reliance on KRS 61.878(1)(a) as the basis for partially denying Mr. Richards' request was misplaced, and that it is obligated to furnish him with an unredacted copy of his background investigation. We believe that 97-ORD-87 is dispositive of the question in this appeal.
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 00-ORD-159; 97-ORD-161; 97-ORD-140.
Based on the analysis set forth in this line of decisions, we conclude that KSP improperly relied on KRS 61.878(1)(a) in partially denying Mr. Richards' 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). 1 If, in fact, social security numbers appear in the background investigation report, we find that KSP may properly redact them insofar as they represent "the keys to the information kingdom,"
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994), and are of a uniquely sensitive nature. KRS 61.878(3) mandates disclosure of the remainder of the report.
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.
Jeffrey S. Richards315 Leawood DriveFrankfort, KY 40601-4469
Diane H. SmithOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
James M. HerrickLegal Counsel Kentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 It does not appear that the position Mr. Richards held was that of a peace officer. Accordingly, KRS 15.400(3), prohibiting disclosure of background investigation reports obtained in the application/certification process to peace officer, is inapplicable as is this office's decision in 00-ORD-118, and KRS 61.878(3) compels disclosure of an unredacted copy of the report to Mr. Richards.