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 Justice Cabinet violated the Open Records Act in denying WHAS-11 reporter Mark Hebert's request for records relating to former State Police Commissioner Jerry Lovitt. For the reasons that follow, we find that the Cabinet's denial of Mr. Hebert's request constituted a violation of the Act.
On October 17, 2002, Mr. Hebert requested access to:
. Any sexual harassment complaints, grievances or informational correspondence alleging misconduct against . . . Lovitt.
. The results of the investigations into those complaints/grievances or allegations.
. Any sexual harassment complaint/grievance or correspondence against Lovitt filed by Trooper ****. 1
. The Justice Cabinet's response and actions taken regarding that complaint/grievance or correspondence.
Three business days later, Justice Cabinet Deputy Secretary Barbara W. Jones denied Mr. Hebert's request. Invoking KRS 61.878(1)(a), she explained that "the privacy interest of any individual making an allegation of sexual harassment dictates that such complaints and allegations remain confidential." In support, Ms. Jones cited Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994) and Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 3224 (1992). Shortly thereafter, Mr. Hebert initiated this appeal emphasizing that although allegations of sexual harassment may be "of a very personal nature," the privacy interests implicated do not necessarily "trump the public's right to know if their public servants have filed, or are the targets of, sexual harassment complaints," and if the agency properly responded to those complaints. We agree.
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of 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 at 328, we have generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. 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, above; 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.
With specific reference to records relating to allegations of sexual harassment, we have stated:
The public's interest in insuring that "public servants are indeed serving the public" does not wane with the passage of time. Board of Examiners at 328. Conversely, "an individual . . . [who] inflicts a tort on his fellow man . . . forfeits his privacy to a certain extent." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). In weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant.
96-ORD-86, p. 3, 4. Recognizing that sexual harassment complaints "are of a uniquely sensitive nature," we nevertheless concluded that "conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. " 96-ORD-86, p. 4.; see also 98-ORD-45 (holding that agency improperly withheld records relating to sexual harassment complaints, charges, or legal actions for a five year period); 99-ORD-39 (holding that agency improperly withheld records relating to sexual harassment complaint leveled against high-ranking official insofar as "[t]he public's interest in insuring that the [agency] promptly, responsibly, and thoroughly investigated the allegations against [the official], and took appropriate action in response thereto, is considerable, and clearly outweighs his reduced privacy interest" ).
Since these open records decisions were issued, the Kentucky Court of Appeals has weighed in on a similar issue. In Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), the court was asked to determined if records relating to the disciplinary investigation of a former police officer were properly withheld under authority of, inter alia, KRS 61.878(1)(a). Concluding that the agency's reliance on that exception was misplaced, the court observed:
[W]e hold that the public has a legitimate interest in the information sought by the newspaper. Unlike Zink and Kentucky Board of Examiners of Psychologists, the information sought by the newspaper in the present case does not contain information concerning an innocent, private citizen. In fact, the only parties that would have standing to argue that the information contained in the complaint is embarrassing or humiliating to them would be Palmer and Driggers [the police officers].
We believe the complaint against Palmer presents a matter of unique public interest. At the time of the complaint, Palmer was an Owensboro police officer, who was sworn to protect the public. The complaint charged specific acts of misconduct by Palmer while he was on duty. Since the question of the disclosure of the details of this alleged misconduct is the reason for this appeal, we will generally describe the alleged misconduct as Palmer neglecting his duty to the public by having an inappropriate relationship with another police office while on duty. We believe the public has a legitimate interest in knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct under KRS 95.450. While the allegations of misconduct by Palmer are of a personal nature, we hold that the public disclosure of the complaint would not constitute a clearly unwarranted invasion of Palmer's personal privacy.
Palmer at 598, 599. Although formal charges were never leveled against Mr. Lovitt, "we do not believe that the particular complaints at issue in this appeal, and consequent . . . decisions to take no action, should be excepted from the 'general rule of inspection' and its underlying policy of openness for the public good . . . ." 96-ORD-86, citing Kentucky Board of Examiners at 327.
Indeed, in Palmer the court rejected the police officer's argument that his resignation precluded final agency action relative to the allegations made against him and that all records relating thereto qualified for exclusion under KRS 61.878(1)(i) and (j), the "preliminary documents" exceptions. 2 The court adopted this office's reasoning in 00-ORD-107, wherein the Attorney General held that "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the [employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." On the facts before it in Palmer v. Driggers, above, the court concluded "that it is only logical to conclude that a resignation from a position by an employee before the [agency] has reached a decision . . . is a 'final action. '" Palmer at 597. Thus:
The fact that [an agency] may have ultimately concluded that there is no basis for action against an individual employee has no bearing on whether these records must be released. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] . . . , if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p. 7. As the Supreme Court held in Board of Examiners, at 328, "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."
98-ORD-45, p. 5. Applying the reasoning of these authorities to the facts before us, we conclude that Mr. Lovitt's departure from KSP before KSP took action was final action. As a general matter, to hold otherwise would be tantamount to enabling public servants who have engaged in misconduct to avoid public scrutiny by voluntarily terminating their public service.
The Cabinet relies on Board of Examiners to support its view that records relating to allegations of sexual misconduct are exempt from public inspection. We believe that the Cabinet's position does not find support in that case. In Board of Examiners, the public agency had already disclosed portions of the record which demonstrated that it had performed its duties by investigating the allegations against the licensed psychologist accused of sexual misconduct "promptly, responsibly, and thoroughly. " Board of Examiners at 328. In so doing, the agency had "effectively promoted the public interest in regulation." Id. The privacy interests which the Court focused on were those of the psychologist's former clients "who complained against [him], as well as other former clients involved in the investigation." The records withheld were "rife with details of clients' marital and familial relationships and psychological symptoms, as well as [the psychologist's] clinical impressions and course of therapy." Id. Although the Court recognized that allegations of sexual misbehavior "are largely personal, and are commonly treated circumspectly," it did not erect an impenetrable barrier to disclosure of records relating to such allegations. Id. In general, we believe that where the allegations concern a public employee, and arise in the context of performance of his or her employment, the public interest in regulation outweighs the employee's privacy interest. It is unacceptable for the Cabinet to deny access to all records relating to these allegations.
This is not to say that portions of the records that contain personally identifiable information implicating significant privacy interests but unrelated to the specific allegations against Mr. Lovitt may not be withheld on the basis of KRS 61.878(1)(a) . Pursuant to KRS 61.878(4):
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
Our review of the materials furnished to this office under authority of KRS 61.880(2)(c) discloses few references to individuals not directly involved in this matter. Bearing in mind that all requesters enjoy an equal right of access to these records, we believe that Trooper ****'s name and personally identifiable information may be redacted, consistent with the line of authorities cited above and notwithstanding the fact that Mr. Hebert identified her by name.
The Cabinet also relies on Beckham v. Board of Education of Jefferson County, above, for the proposition that "with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality." Beckham at 578. We have determined that with respect to the records in dispute in this appeal, the public's right to know is not subservient to the privacy interests implicated, even though disclosure "may cause inconvenience or embarrassment to public officials or others." KRS 61.871. Nevertheless, in Beckham, above, the Kentucky Supreme Court recognized the right of a party affected by disclosure of public records pursuant to the Kentucky Open Records Act to contest disclosure in the courts. The Cabinet may wish to advise Mr. Lovitt or Trooper **** of their right to assert a claim for nondisclosure in the courts. Alternatively, the Cabinet may, if it disagrees with this office's analysis of its argument, appeal our decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). 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.
Footnotes
Footnotes
1 Although Mr. Hebert identified the trooper by name, we omit it in deference to her privacy interests.
2 The Cabinet did not invoke KRS 61.878(1)(i) or (j) in response to Mr. Hebert's request.