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 Bullitt County Judge/Executive 1 properly relied on KRS 61.878(1)(a) and KRS 61.878(3) in denying Courier-Journal staff writer Tonia Holbrook's May 30, 2002 request for specifically identified records from the personnel file of former Bullitt County jail employee Mildred Gail Jones. For the reasons that follow, we find that the County Judge/Executive's reliance on the cited provisions was misplaced and that his refusal to disclose the requested records constituted a violation of the Open Records Act.
On May 30, Ms. Holbrook requested the opportunity to review and copy records in Ms. Jones' personnel file consisting of:
1. Her job application;
2. Documentation of any complaints filed against Jones during her employment at the jail;
3. Documentation of any disciplinary action taken against Jones as a result;
4. Her notice of termination.
In a response dated June 4, 2002, Deputy Judge/Executive Robert P. Flaherty denied Ms. Holbrook's request, advising her as follows:
The information you requested is exempt from the Kentucky Open Records Act pursuant to KRS 61.878(1)(a) as it is of a personal nature whereas the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(3) specifically recognizes the right of an employee to have access to his/her personnel information, with some exceptions. This specific recognition supports the exemption of such information from public disclosure to individuals or entities other than the employee. Bullitt County Fiscal Court and the Office of the Judge/Executive respect the privacy rights of its employees as set forth in the United States and Kentucky Constitutions and applicable statutory and case law.
Shortly thereafter, Kimberly K. Greene, an attorney representing The Courier-Journal, initiated this appeal having already attempted to informally resolve the dispute through an exchange of correspondence in which she advanced arguments in opposition to the County Judge's position and cited controlling legal authority on the issue of access to personnel records such as those requested by Ms. Holbrook. Ms. Greene restated these arguments, and referenced these authorities, in her July 1 open records appeal.
In a supplemental response directed to this office following commencement of The Courier-Journal's appeal, Deputy Judge/Executive Flaherty elaborated on the Bullitt County Judge's position. He explained:
This office represents the taxpayers and residents of Bullitt County. The files requested relate to a former employee who currently has a civil action pending against the county. It would be irresponsible for this office to take action that may give rise to an additional legal claim by this former employee for violating her privacy rights without careful thought and deliberation. In addition, our legal counsel has advised on multiple occasions not to release any personnel records of current or former employees without a request from the employee or a direct legal opinion or court order directing such release.
As much as this office appreciates the analysis of the applicable law by Dinsmore & Shohl, which thanks was expressed to them, they are representing their client, The Courier-Journal. I have no guarantee that the legal analysis provided was exhaustive and authoritative as to the applicable statutory and case law. They do not serve as legal counsel for Bullitt County Fiscal Court, and it would be inappropriate for this office to rely unequivocally on their recitation of the law.
. . .
If the Office of the Attorney General concludes that the Open Records Act requires release of the requested records, or parts thereof, to The Courier Journal, then this office shall do so without hesitation.
Based on the overwhelming weight of legal authority, we conclude that the requested records must be released.
With regard to the issue of public access to public employee personnel records, we are on familiar ground. So too, we would assume, is legal counsel for the Bullitt County Judge/Executive. On July 25, 2000, this office issued a decision to his office in which we declared that reliance on KRS 61.878(1)(a) as a basis for denying access to records reflecting a public employee's educational background and qualifications, including his or her employment application or resume, was misplaced, as was reliance on KRS 61.878(1)(a) as a basis for denying access to complaints leveled against a public employee upon which final action had been taken. 00-ORD-137. A copy of 00-ORD-137 is attached hereto and incorporated by reference. At pages two and three of 00-ORD-137, this office observed:
In view of the public's interest in insuring that public agencies discharge their duty to hire individuals who qualify by virtue of education and experience for the positions they hold, this office has declared that "inspection of an employment application or resume must be permitted regarding work experience and educational levels attained . . . that are reasonably related to qualifying for public employment. " OAG 89-90, p. 10; OAG 91-48. Fundamental to this position is the recognition that "one does not typically work [or attend school] in secret." OAG 89-90, p. 7. That the level of education attained is not directly related to a specific job qualification . . . does not alter our analysis. So long as . . . educational level is "reasonably related to qualifying for public employment, " it must be disclosed. OAG 89-90, p. 10. . . . The Bullitt County Attorney may, of course, redact any information appearing on [the] application, resume, or other pertinent records, that is of a purely personal nature and unrelated to . . . public employment, such as home address, social security number, and marital status. 97-ORD-66; 00-ORD-90; 00-ORD-126.
By the same token, we do not agree . . . that any complaints leveled against a public employee, and upon which final action has been taken, including the decision to take no action, can properly be withheld. Although he indicates that the employee's file contains no written reprimands, [the Bullitt County Attorney] does not deny the presence of complaints in her file. Complaints against public agency employees, and disciplinary records generally, have traditionally been treated as open records. OAG 78-133; OAG 91-20, 95-ORD-123; 97-ORD-66; 00-ORD-104.
This principle of law applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
97-ORD-121, p. 7.
00-ORD-137, p. 2, 3.
Although we did not specifically address the public's right of access to termination notices, we believe that right is implicitly recognized in 00-ORD-137, and explicitly recognized in 00-ORD-104, a copy of which is attached hereto and incorporated by reference. At pages nine and ten of that decision, the Attorney General opined:
The Attorney General has recognized that, given the compelling pubic interest in disclosure, termination letters must be made available for public inspection. 99-ORD-164; 97-ORD-128; 95-ORD-147. By the same token, if a public employee is separated from public employment voluntarily, through resignation, or by agreement of the parties, through settlement, the public is entitled to inspect records documenting same. With reference to letters of resignation, this office has observed:
94-ORD-108, p. 29. [Footnote omitted.] See also, OAG 81-315; OAG 85-136; 97-ORD-121; 99-ORD-39. With reference to settlement/ severance agreements under the terms of which a public employee is separated from employment, the Attorney General has adopted the position of the Kentucky Supreme Court, articulated in Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 473 (1997):
The presence of a confidentiality clause in such an agreement does not alter our analysis inasmuch as such a clause "is not, in general, entitled to protection." Id.; 98-ORD-24; 99-ORD-39; 00-ORD-5. If [the city employee] was terminated by the city, voluntarily resigned from his employment with the city, or entered into a settlement/ severance agreement with the city, thereby resolving his employment status, [the requester] is entitled to inspect and receive copies of any records in the city's custody which memorialize these acts.
See also OAG 81-345; 93-ORD-117; 95-ORD-47; 99-ORD-164; 00-ORD-5.
The authorities cited represent a small fraction of the existing legal authorities mandating disclosure of records reflecting public employee job qualifications, performance of official duties, misconduct and discipline, and termination and resignation. Most importantly, we direct the Bullitt County Judge/Executive's attention to the Kentucky Court of Appeals recent decision in
Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). There, the court held that records relating to complaints against public agency employees "present[] a matter of unique public interest. " Id. at 599. We agree. It is therefore our opinion that the Bullitt County Judge/Executive improperly withheld Ms. Jones' job application, 2 complaints filed against her, records documenting final action on these complaints, including the decision to take no action, and records reflecting her termination or final employment status.
Our opinion is not altered by KRS 61.878(3). That statute 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 this provision, the Attorney General has observed:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the [otherwise exempt] documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
95-ORD-97, p. 4. Echoing this view, we have stated, "KRS 61.878(3) invests public employees with a broader right of access to otherwise exempt records which relate to them, but in no way restricts their access to nonexempt records." 97-ORD-152, p. 10. Neither the courts nor this office have ever held that KRS 61.878(3) provides an independent basis for denying a public agency employee, or a member of the public generally, access to public records. Neither the language of KRS 61.878(3) nor the intent underlying it supports such an interpretation. In view of the expansive wording of KRS 61.878(3), 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 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, we believe that it would be incongruous to construe this provision in such a way as to limit public access to nonexempt records. For these reasons, we find that the Bullitt County Judge/Executive's position is fundamentally flawed.
We cannot approve a conservative course of conduct relative to disclosure of public employee personnel records that finds no support in existing case law or open records decisions. 3 The Bullitt County Judge/Executive cites no such legal authority supporting his position, and it is not incumbent on The Courier-Journal, or any other open records applicant, to conduct an "exhaustive legal analysis" of the issue to uncover conflicting legal authority in the unlikely event it exists. Nor would we expect the Bullitt County Judge/Executive to "rely unequivocally" on the applicant's "recitation of the law." Rather, it is for the Judge/Executive, aided by the Bullitt County Attorney, to conduct his own analysis and arrive at his own conclusion. In our view, such an analysis can yield only one conclusion, and that conclusion is that the records identified in Ms. Jones's file should have been, and must now 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 proceeding.
Kimberly K. Greene2000Meidinger Tower462 S. Fourth AvenueLouisville, KY 40202
Kenneth RigdonP. O. Box 768Shepherdsville, KY 40165
Robert P. FlahertyP. O. Box 768Shepherdsville, KY 40165
Walter SholarP. O. Box 6539Shepherdsville, KY 40165-6539
Footnotes
Footnotes
1 Pursuant to KRS 61.870(1)(a), the Bullitt County Judge/Executive is a "public agency" for purposes of the Open Records Act.
2 As noted above, the County Judge may make appropriate redactions from this document of purely personal information such as Ms. Jones' marital status, home address, and social security number pursuant to KRS 61.878(1)(a), KRS 61.878(4), and 00-ORD-137.
3 Recognizing that "the unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment," in Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) the Kentucky Supreme Court held that a person affected by disclosure of public records has standing to assert a claim for nondisclosure in circuit court prior to disclosure of the records. See also Palmer v. Driggers, above. Unless Ms. Jones immediately comes forward to assert such a claim, these decisions have no bearing on the County Judge/Executive's duty to disclose.