Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet 's denial of Linda A. Powell's request for copies of Cabinet records pertaining to HQM of Campbell Co. Inc./Lakeside Health Care, Case No. 01900569, violated the Open Records Act. For the reasons that follow, and based on the authorities cited, we remand the appeal back to the Cabinet with directions that it issue a new response to Ms. Powell's request within three business days after receipt of the remand.
By letter dated February 18, 2002, Ms. Powell requested "all available information pertaining to HQM of Campbell Co. Inc./Lakeside Health Care specifically related to the investigation for Linda A. Powell regarding unpaid PTO (paid time off)."
By letter dated February 22, 2002, Margaret Goodlett Miles, Paralegal, responded to Ms. Powell's request on behalf of the Cabinet, advising, in relevant part:
This letter is in response to your request for copies from the above referenced Division of Employment Standards, Apprenticeship and Training investigative file.
The file is not releasable at this time, pursuant to KRS 61.878(1)(h) and OAG 87-29, simply because the file is under submission by the investigator and not completed as of this date. As soon as the file is completed and this agency has decided what action to take, the releasable copies will be available. Please note that in accordance with the confidentiality provisions of KRS 337.345, complaints are not releasable.
In her letter of appeal, Ms. Powell indicated that the Cabinet's February 22, 2002 response was different from the response she had received December 18, 2001 from Kelli Teegarden, Cabinet Investigator, advising her that "[t]he case against the above referenced employer [HQM of Campbell Co. Inc./Lakeside Health Care] will be closed at this time."
After receipt of the Notification of the Appeal and a copy of Ms. Powell's letter of appeal, Ms. Miles provided this office with a response to the issues raised in the appeal. In her response, dated March 6, 2002, Ms. Miles explained:
The Division of Employment Standards, Apprenticeship and Training investigation of HQM of Campbell Co. Inc./Lakeside Health Care, Case No. 01900569 is not complete. Portions of the investigation relating to individual claimants may be complete; however, issues concerning others are not. Consequently, a final agency decision has not been made and the Cabinet considers the investigation incomplete at this time.
We are asked to determine whether the responses of the Cabinet violated the Open Records Act. We conclude the Cabinet's reliance upon KRS 61.878(1)(h) in denying the requested records was misplaced because it failed to establish how the premature release of the requested records would harm its administrative investigation.
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing this provision, the Attorney General has repeatedly recognized:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3.
In 96-ORD-56, we held that although the Cabinet clearly satisfied it was an agency involved in an administrative adjudication, it failed to explain how disclosure of the requested investigative records would harm it, and therefore did not satisfy the third part of the test supporting the invocation of KRS 61.878(1)(h). The same facts exist in this case.
This office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11. Compare: 01-ORD-217, 97-ORD-52, and OAG 90-116, in which this office found that the agencies did establish the harm that would result from the premature disclosure of the requested records. This is not to say that the investigative file of an incomplete administrative adjudication could not be withheld under authority of KRS 61.878(1)(h), but that the Cabinet has failed to meet the requirements for invoking that exception for withholding public records.
Accordingly, we find 96-ORD-56 to be controlling and remand the appeal back to the Cabinet with directions that it issue a new response to Ms. Powell's request within three business days after receipt of this remand. If the Cabinet denies her request on the same grounds, it must show how it will be harmed by premature disclosure of the records she requests. If the Cabinet fails to respond or again fails to make the requisite showing relative to its denial, Ms. Powell can initiate a new appeal with this office.
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.
Linda Powell125 Capri DriveFt. Thomas, KY 41075-1217
Kelli TeegardenLabor Cabinet1047 U.S. Hwy. 127 S., Ste. 4Frankfort, KY 40601-4381
Margaret Goodlett MilesLabor Cabinet1047 U.S. Hwy. 127 S., Ste. 4Frankfort, KY 40601-4381
Pat PattersonDivision of Employment StandardsLabor Cabinet1047 U.S. Hwy. 127 S., Ste. 4Frankfort, KY 40601-4381