Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Board of Examination and Registration of Architects (Board) violated the Open Records Act in denying Stephen L. Frank's request for a copy of the Board's private reprimand of a licensed architect. Because the Board is authorized to issue a private reprimand by KRS 323.120(1), we conclude that its denial of Mr. Frank's request did not constitute a violation of the Act.
In the instant case, Mr. Frank filed a complaint against a licensed architect. He was subsequently advised that the Board had reached a resolution of the matter. Mr. Frank asked for a copy of any order or settlement agreement pertaining to the disposition of his complaint. Treating his request as one made under the Open Records Act, the Board denied the request under authority of KRS 323.120(1) and KRS 61.878(1)(l). It is from this denial that Mr. Frank appeals.
In response to the Attorney General's notification of receipt of open records appeal, the Board supplemented its denial in a letter, dated August 1, 2001, from James J. Grawe, Assistant Attorney General, Counsel to the Board. In his response, Mr. Grawe advised:
KRS 61.878(1) identifies certain records that are excluded from public inspection under KRS 61.870 to 61.884, the Open Records Act. KRS 61.878(1)(l), "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
The enactment of the General Assembly which prohibits disclosure or otherwise makes the requested materials confidential is found in KRS 323.120(1). That section provides:
Thus, the General Assembly has enacted a statute that gives the Board the authority to issue private as well as public reprimands.
The use of the term "private reprimand, " juxtaposed as it is with the term "public reprimand, " demonstrates that the General Assembly has explicitly given the Board the power to take disciplinary actions that are not subject to public disclosure. Although the term "private" is not defined by statute, well-established rules of statutory construction allow one to derive the meaning of this term. Courts give statutory language its literal meaning unless to do so would lead to absurd or wholly unreasonable results. Kentucky Unemployment Insurance Co. v. Jones, Ky. App., 809 S.W.2d 715 (1991). The purpose for doing this is to insure that the general purpose and intent of the legislature is carried out in the application of the statute. Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947). Indeed, where the intended meaning of a statute is clear from the language of the statute as a whole, then the terms used by the legislature must be afforded their common usage meaning. Dept. of Alcoholic Beverage Control v. Liquor Outlet, Inc., 734 S.W.2d 816 (Ky. App. 1987); Terhune v. Commonwealth, Ky. App., 907 S.W.2d 779 (1995).
By the very nature of the language of the statute it is clear that a private reprimand is not public. "Private" is defined in WEBSTER'S NEW WORLD DICTIONARY 468 (1990) as "not open to or controlled by the public," "for an individual person," and "secret." If a private reprimand was interpreted as not being confidential, then it would be identical to a public reprimand. Another long standing rule of statutory construction is that every word and clause should be given effect and none rendered meaningless. The General Assembly clearly intended that there be two types of reprimands, one which is public and open to disclosure and one which is confidential. Therefore, if a licensee's disciplinary file contains a private reprimand, it is not public record. To rule otherwise would produce an absurd result and effectively eliminate the term private from KRS 323.120.
KRS 61.878(1)(l) operates in tandem with otherwise unrelated legislative enactments by which access to public records is restricted. See OAG 00-ORD-118. Here, KRS 323.120 gives the Board the authority to issue private reprimands in those cases where such disciplinary action is appropriate. In enacting this section, the General Assembly gave the Board the sole authority to decide the gravity of the disciplinary action to be imposed, including whether the action should be subjected to the stigma of public censure. The Board, in making this decision, can consider such factors as the previous disciplinary history of the licensee, whether the private reprimand will have the desired deterrent effect on this licensee, and the licensee's evidence regarding the nature of the underlying events and any mitigating facts or circumstances that may come into play.
We are asked to determine whether the Board's denial of the request for a copy of the private reprimand constituted a violation of the Open Records Act. For the reasons that follow, we conclude that it did not.
In KRS 61.871, the legislature articulated the policy of the Open Records Act. That statute provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
(Emphasis added.)
Addressing this policy of openness as it applied to the public's access to complaints submitted by clients alleging misconduct of psychologists to the
Board of Examiners of Psychologists, the Kentucky Supreme Court, in Kentucky State Board of Examiners v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (1992), stated:
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records 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. The fundamental mission of the Board of Examiners of Psychologists is to ensure that citizens who consult a licensed psychologist will receive competent, ethical, professional services. Perhaps secondarily, the Board would likewise serve the public interest by preserving the credentials of a qualified practitioner wrongfully accused of unprofessional conduct.
Against this declared backdrop of openness, the General Assembly enacted KRS 323.120(1), which clearly gives the Board the authority and discretion to issue a "private reprimand" in regulating the conduct and license of a practicing architect. We agree with the Board's rationale in its supplemental response that the General Assembly obviously intended that there be two types of reprimands, one public and open to disclosure and one private and confidential. Strictly construing this language in KRS 323.120(1), we find that the legislature has restricted public access to private reprimands issued by the Board.
Thus, if a licensee receives a private reprimand, it is private and confidential and may be properly withheld from disclosure under authority of KRS 323.120(1) and KRS 61.878(1)(l) . Accordingly, we conclude the Board did not violate the Open Records Act in denying Mr. Frank's request for a copy of the private reprimand.
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.
Stephen FrankPitt & Frank, PSC6450 Dutchmans ParkwayLouisville, KY 40205
James J. GraweAssistant Attorney GeneralOffice of the Attorney General200 Capitol AvenueSuite 120Frankfort, KY 40601