Request By:
Dr. J. Larry Hood
188 Timberlane Court
Nicholasville, KY 40356Morgan G. Ransdell
Kentucky Commission on Human Rights
Heyburn Bldg., 7th Floor
332 West Broadway
Louisville, KY 40202Jeff Metzmeier
Kentucky Commission on Human Rights
Heyburn Bldg., 7th Floor
332 West Broadway
Louisville, KY 40202
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 denying J. Larry Hood's February 11, 2002 request "under court ruling EEOC vs. Assoc. Dry Good Corp . (1981) [sic] 1 . . . [for] a copy of all the Cabinet for Families and Children's responses to [Mr. Hood's] charges and the Commission's inquiries." For the reasons that follow, we affirm the Commission's denial of Mr. Hood's request based on existing legal authority construing Chapter 61 and Chapter 344 of the Kentucky Revised Statutes.
In a response dated February 18, 2002, Commission Staff Attorney Morgan G. Ransdell denied Mr. Hood's request. He relied on KRS 61.878(1)(l), 2 incorporating the confidentiality provision codified at KRS 344.250(6), into the Open Records Act. KRS 344.250(6) states:
It is unlawful for a commissioner or employee of the commission [on Human Rights] 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.
In support of the Commission's position that documents responsive to Mr. Hood's request are exempt from the Open Record Act requirement of mandatory disclosure, Mr. Ransdell observed:
In OAG 85-5, the Attorney General construed KRS 344.200 and KRS 344.250 to exempt the vast bulk of the agency record from public inspection, except in instances where the evidentiary hearing has already been held. See also , OAG 84-376.
He concluded that because no evidentiary hearing resulted from Mr. Hood's complaint of discrimination against the Cabinet for Families and Children, Mr. Hood's request must be denied.
On appeal, Mr. Hood acknowledges that the Attorney General affirmed the Commission's denial of an earlier, identical request he submitted to the Commission, but explains:
Recently I became aware of a 1981 U.S. Supreme Court decision, EEOC v. Assoc. Dry Goods Corp . [sic], that made clear that an EEOC complainant considering litigation and agreeing to not divulge information is not part of the public forbidden from receiving such information, and is, instead, entitled to same, but not the response to similar charges made by other complainants . . . .
He urges this office to direct the Commission "to conform to the U.S. Supreme Court decision and release the information requested."
In supplemental responses directed to this office following commencement of Mr. Hood's appeal, Commission Managing Attorney Jeffrey T. Metzmeier elaborated on the Commission's position. On March 25, Mr. Metzmeier advised:
This appeal raises the exact same issue that was addressed in 00-ORD-100 3 . . . . Nothing has changed. The 2000 appeal involved the exact same request, the exact same documents, and the exact same basis for denial. Once again, Dr. Hood seeks to obtain the documents that were submitted to the Kentucky Commission on Human Rights by his employer, the Kentucky Cabinet for Families and Children. These documents were submitted by the Cabinet in response to Dr. Hood's administrative complaint of employment discrimination. KCHR Complaint No. 4495-E . . . .
"Because all things remain the same," Mr. Metzmeier argued, "the Kentucky Office of the Attorney General should reach the same result in the present appeal." 4
With reference to Mr. Hood's contention that the Attorney General should modify his interpretation of KRS 344.250(6) based on EEOC v. Associated Dry Good Corporation , above, Mr. Metzmeier observed that in that case:
the U.S. Supreme Court interpreted a federal statute based upon a detailed consideration of federal legislative history. With this express foundation, the Court concluded that EEOC complainants are not prohibited by EEOC nondisclosure provisions from obtaining the submissions of EEOC respondents. This holding is unique to the EEOC because the language and the legislative history of the relevant federal statute differ from the language and legislative history of KRS 344.250(6).
It was his position that "the statutory interpretation set forth in Associated Dry Goods is of little direct relevance when interpreting KRS 344.250(6)."
Because Mr. Hood's discrimination complaint was directed to the Kentucky Commission on Human Rights under Chapter 344 of the Kentucky Revised Statutes, and not to the Equal Employment Opportunity Commission under 42 U.S.C.A. § 2000e, and because his request for records was made under the Kentucky Open Records, incorporating KRS 344.250(6) , and not under the federal legislative scheme, including 42 U.S.C. § 2000e-5(b), we find that Associated Dry Goods is not controlling and continue to adhere to the longstanding position articulated in the cited Attorney General open records decisions. These decisions are premised on "the 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," and on the legislative determination that "the public's right to know is adequately served by disclosure of only those records identified in the . . . decisions." 00-ORD-209, p. 6.
In 00-ORD-100 and 00-ORD-209, copies of which are attached hereto and incorporated by reference, Mr. Hood challenged the Attorney General's interpretation of KRS 344.250(6). In each of these decisions, 5 this office affirmed the Commission's denials of his requests for information obtained by the Commission pursuant to its authority under KRS 344.250 to conduct investigations of complaints, notwithstanding the fact that the requester, Mr. Hood, was the same person who filed the complaint. At page 5 of 00-ORD-100, we opined:
The fact that the person seeking access to a record or records contained in the investigative file is the same person who originally filed the complaint does not alter this conclusion. In 99-ORD-20, the Attorney General affirmed the Kentucky Commission on Human Rights' denial of complainant's request for records substantiating the basis for its decision to dismiss her complaint. Acknowledging the legitimacy of the complainant's concern that she and her attorney could not adequately address the issue of whether her complaint was properly dismissed if she were denied an opportunity to inspect the records compiled in the investigation, we nevertheless concluded that:
99-ORD-20, p. 3. We believe that the logic of this decision must be extended to the appeal before us. See also 99-ORD-224 (affirming Louisville and Jefferson County Human Relations Commission's denial of complainant's request to review all records in her closed file on the basis of KRS 344.250(6)).
Similarly, in 00-ORD-209 we observed:
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.
00-ORD-209, p. 6. Thus, the Kentucky Attorney General has not construed KRS 344.250(6) to exclude charging parties "from the 'public' to whom disclosure of confidential information is illegal . . . ." Associated Dry Goods at 598.
Nor do we believe we are not bound to do so by virtue of Associated Dry Goods . An open records appeal is not the appropriate forum for a lengthy analysis of the concept of federal preemption. Suffice it to say that interpretation of the state's open records act is reserved to the state . Mr. Hood is correct that in the presence of a direct conflict between a federal and a state statute, state law may have to yield to federal law by virtue of the Supremacy Clause of Article VI of the United States Constitution. No such conflict exists here. The state and federal laws at issue in this appeal have separate and distinct application. Complaints made to the Kentucky Commission on Human Rights are governed by Chapter 344 of the Kentucky Revised Statutes, and requests for records pertaining thereto are governed by the Kentucky Open Records Act, and the confidentiality provision codified at KRS 344.250(6), as construed by the Kentucky Attorney General and the courts. Complaints made to the Equal Employment Opportunity Commission are governed by 42 U.S.C. § 2000e, and requests for records pertaining thereto are governed by the Freedom of Information Act, and the confidentiality provision codified at 42 U.S.C. § 2000e-5(b), as construed by the EEOC and the courts.
The Commission is not subject to the Freedom of Information Act, which applies only to agencies within the federal government and records in the custody of those agencies, 5 U.S.C. § 552(a)(3)(A), or 42 U.S.C. § 2000e-5(b), which applies to the Equal Employment Opportunity Commission. Because the state and federal laws relating to records access do not apply to the same records, Kentucky's law does not stand as an obstacle to the execution of the objectives of the federal acts. The Supremacy Clause is not implicated. There is no conflict. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479-480 (1974) (United States Supreme Court holds that although Ohio trademark law differs from federal patent law, state law is not preempted because it does not "clash with the objectives of the federal patent law . . . "); Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978) (In areas of coincident federal and state regulation, U.S. Supreme Court decisions enjoin seeking out conflicts between state and federal regulation where none exits). Therefore, we agree with the Commission that the statutory interpretation contained in Associated Dry Goods has no direct bearing on our interpretation of KRS 344.250(6).
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.
Footnotes
Footnotes
1 Equal Employment Opportunity Commission v. Associated Dry Goods Corporation, 449 U.S. 590 (1981).
2 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 00-ORD-100 also involved Mr. Hood and the Commission, and the records access issue on appeal was resolved in favor of the Commission.
4 In subsequent correspondence, Mr. Metzmeier notified this office that on March 27, 2002, the Commission dismissed Mr. Hood's administrative complaint with prejudice in a final and appealable order. Further, he noted, that because Mr. Hood has already utilized the reconsideration process found at KRS 344.200(3), there is no remaining avenue for Commission consideration of KCHR Complaint No. 4495-E. Relying on 00-ORD-209, 00-ORD-100, OAG 85-5, and OAG 84-376, Mr. Metzmeier concluded that "dismissal of Dr. Hood's complaint prior to administrative hearing clearly dictates that the documents submitted by the Cabinet . . . should remain exempt from the Kentucky Open Records Act. " In sum, he maintained, the dismissal of Mr. Hood's administrative complaint "changes nothing," and the disputed records "remain exempt. "
5 Because they were not appealed to circuit court, these open records decisions have "the force and effect of law." KRS 61.880(5)(b).