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 Pendleton County Judge/Executive violated the Open Records Act in denying the Mayor of the City of Falmouth's request for a copy of the letter directed to a member of the Falmouth City Council at the behest of the Pendleton County Fiscal Court following the fiscal court's closed session discussion of a complaint leveled against the council member by a county employee. For the reasons that follow, we find that the County Judge failed to meet the statutory burden of proof in sustaining his denial of the Mayor's request.
In a letter directed to Pendleton County Judge/Executive Henry Bertram, Gene Flaugher, Mayor of the City of Falmouth, requested a copy of the letter referenced in the minutes of the December 27 meeting of the Pendleton County Fiscal Court. Those minutes reflect:
In Re: Closed Session to Discuss Personal Matter Under KRS 61.810 (1-f).
Squire Faulkner made a motion to go into closed session at 10:21 o-clock A.M. to discuss a personal matter per KRS 61.810 (1-f), seconded by Squire Dicken, carried.
Squire Klaber made a motion to go into open session at 11:10 o'clock A.M., seconded by Squire Wells, carried.
County Attorney, Don Wells stated the Fiscal Court was in closed session to discuss a personal matter, no action was taken.
Squire Dicken made a motion in allowance of a letter to be mailed by certified mail, return receipt requested, limited signature to the person involved as discussed in closed session, seconded by Squire Klaber, carried, Squire Wells opposed this motion. 1
In addition, Mayor Flaugher requested "any correspondence concerning this matter in [the complainant's] personnel file. "
On January 31, 2002, Pendleton County Judge/Executive Henry W. Bertram denied Mayor Flaugher's request. Judge Bertram advised:
You have sought out information, that you either believe is available or think might be available, related to a personal matter involving said employee that purportedly happened on the job. Sometime ago, when we received word from your Chief Scott about an alleged problem, we conferred with the employee about his or her preference in terms of how to handle the situation.
Based upon an election made by the employee the matter was handled informally. Insofar as I am aware the matter has been resolved.
The present issue is the discoverability or availability of any such material under KRS 61.874, in the context of KRS 61.878. While section 874 suggests that virtually all material is discoverable, section 878 indicates that certain documentation may be unavailable if the request is for matter or material that is of such a personal nature that providing the material would amount to a clear and unwarranted invasion of an individual's right to privacy.
Our response to your open records request is that this material will not be made available because of the fact that it involves matter of such a personal nature as to be clearly within the realm anticipated by KRS 61.878.
In closing, Judge Bertram noted that because Mayor Flaugher apparently obtained a copy of the complainant's letter, the city "should be able to process this matter as fully and effectively as [the county], without trying to set the precedent of invading a personnel file and attempting to obviate the confidentiality [the county] maintain[s] with respect to documents and information within the personnel files of [its employees]." It is from this response that Mayor Flaugher appeals, asserting that he must "obtain all the information necessary to present this matter to the Falmouth City Council for their consideration and possible charges against [the council member] ."
In a supplemental response directed to this office following commencement of Mayor Flaugher's appeal, Pendleton County Attorney C. Donald Wells elaborated on Judge Bertram's position. He explained:
We are uncertain as to how or upon what basis the City maintains that a complaint was filed with the Fiscal Court involving any of the parties named in the Mayor's letter, as mentioned in paragraph three of his letter to the Attorney General, because insofar as I am aware no such information would have been shared with anyone outside the individuals allegedly involved.
If there were any such activity, anonymity would have been maintained or observed at the request of any such victim. Further, the matter would have been resolved prior to the date on which the alleged complaint was received by the City; it would have been resolved in the fashion requested by the employee involved, i.e., confidentially; and, there is no indication that the Fiscal Court has received any intimation from any one other than the City itself as to any change in any such alleged, aggrieved party's desires as to confidentiality.
Although this appeal presents a slight factual twist on the frequently analyzed topic of public employee and public official misconduct, we believe the outcome is determined by a line of authority culminating in the Kentucky Court of Appeals' decision in Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), holding that disclosure of records relating to complaints of misconduct leveled against public employees or officials does not constitute a clearly unwarranted invasion of personal privacy, even if "the allegations of misconduct . . . are of a personal nature." Id. at 599. Instead, they are records in which the public "has a legitimate interest. " Id.
The Attorney General has considered the question of access to records relating to public employee and public official 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 of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 328 (1992), we have generally held that the privacy interest of public employees and public officials who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public's interest in monitoring the conduct of its servants and in the response of the public agency to the allegations of misconduct leveled against them. 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, supra; 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.
In general, we believe that where the allegations concern a public employee or official, and arise in the context of performance of his or her employment or the discharge of his or her duties, the public interest in determining that "public servants are indeed serving the public," id., outweighs the employee's or official's privacy interest.
This is not to say that information appearing in records documenting public employee/ official misconduct may not be withheld on the basis of KRS 61.878(1)(a). The Attorney General has recognized that the identity of a complainant can be withheld under this exemption if the complainant requests anonymity or could reasonably expect confidentiality. See 98-ORD-45 and 99-ORD-39. Thus, a public agency may, where warranted, take reasonable steps to protect the identity of the complainant by masking his or her name and any information that readily identifies him or her (such as his or her title or position description). 2
This issue comes to us in an unusual factual posture. Although the complainant is a county employee, and the alleged misconduct giving rise to the complaint occurred on public property, the council member against whom the complaint was made is not a county employee, and the alleged misconduct did not occur in the performance of his official duties. Nevertheless, he is an elected public official and the conduct complained of involved a public agency employee engaged in the discharge of her duties, occurred during the public agency's regular business hours, and, as noted, on public property. Given the unusual facts giving rise to this appeal, the Pendleton County Fiscal Court exercises understandable circumspection in an attempt to shield the complainant and the council member from public scrutiny. Because our duty arises under KRS 61.880(2), we cannot exercise the same degree of circumspection as the fiscal court in this matter except to the extent of avoiding publication of the complainant's and council member's names given their right to assert a claim for nondisclosure of the records in circuit court. Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994). The record before us reflects that a complaint was made by a county employee against a city council member. That complaint was first submitted to Chief Robert Scott, Falmouth Police Department, and later to Mayor Flaugher. As a result, the fiscal court conducted a closed session discussion of the employee's complaint, and a decision was made in open session to send a letter to the council member "as discussed in closed session. " This was the fiscal court's final, albeit informal, 3 action in the matter of the employee's complaint.
Given the Pendleton County Fiscal Court's guarded response to Mayor Flaugher's open records request and this office's notification of open records appeal, it is unclear whether the fiscal court "promptly, responsibly, and thoroughly" investigated the allegations leveled against the councilman and whether it took appropriate action in response thereto. Kentucky Board of Examiners at 328. The public's interest in disclosure is not premised exclusively on its interest in insuring that "public servants are indeed serving the public," Id., but is also premised on the public's "right to be informed as to what their government is doing." Zink at 829. It is precisely for this reason that the public must be afforded access to the record documenting the fiscal court's "informal handling" of the matter, namely, the letter directed to the councilman. We do not believe that a county policy designed to protect the confidentiality of employee personnel files provides a sufficient legal basis for denying access to records contained therein or in a separate complaint file. As this office has often noted, "A personnel folder of a public employee, by its very nature, is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection." OAG 88-53, p. 3; 97-ORD-66; 00-ORD-137. A policy of blanket denial of access to public employee personnel files is not supported by KRS 61.878(1)(a). Accordingly, we find that the fiscal court must disclose the requested record to Mayor Flaugher. If any records relating to this matter and reflecting final action of the fiscal court are located in the complainant's personnel file, those records must also be disclosed.
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.
Distributed to:
Gene Flaugher, Mayor230 Main StreetFalmouth, KY 41040
Henry W. BertramPendleton County Judge/Executive233 Main Street, Rm. 4Falmouth, KY 41040
C. Donald WellsPendleton County Attorney235 Main StreetFalmouth, KY 41040
Footnotes
Footnotes
1 Although the issue was not raised on appeal, we question whether the fiscal court properly conducted a closed session discussion of the county employee's complaint pursuant to KRS 61.810(1)(f). We assume the fiscal court was not contemplating disciplining or dismissing the complainant. Nor could the fiscal court discipline or dismiss the city council member against whom the complaint was made since he is not employed by the county.
2 Clearly, Mayor Flaugher is aware of the complainant's identity. Nevertheless, we remind the parties that records that are available to Mayor Flaugher are available to the public generally. In other words, not just those with a legitimate interest, but the merely curious, would have the same access under the Open Records Act." Zink v. Commonwealth, Ky., App., 902 S.W.2d 825, 829 (1994).
3 Neither the courts nor this office have recognized a distinction between formal and informal complaints and formal and informal action. See, Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983); 99-ORD-39.