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 Northpoint Training Center properly relied on KRS 61.878(1)(j) in denying NTC Nurse Infirmary employee Lisa Turner's November 25, 2002, request for a copy of "the recent investigation of Dr. [George W.] Noe . . . [that commenced] in Sept. 2002 and ended in Nov. 2002." For the reasons that follow, we find that NTC's reliance on KRS 61.878(1)(j) was only partially justified, and that pursuant to KRS 61.878(3) those portions of the investigative report "that relate to [Ms. Turner]" must be disclosed to her notwithstanding the fact that they otherwise constitute "preliminary and other supporting documents from . . . ."
In her letter of appeal, Ms. Turner asserted:
Under [KRS 61.878(1)(j)], if recommendations and notes are adopted or incorporated into the final action, they are no longer exempt. I filed a grievance due to a hostile working environment and also an EEOC complaint involving Dr. George W. Noe. After the investigation, Dr. George W. Noe was terminated from his position at Northpoint Training Center.
They denied my request due to "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated." Once these documents became part of the final action, they lost their exempt status. [Citation omitted.] Dr. George W. Noe was terminated after complaints were filed (hostile working environment and EEOC), [and] I believe that the final action stemmed from these complaints.
In support, Ms. Turner cited City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982).
In supplemental correspondence directed to this office following commencement of Ms. Turner's appeal, Department of Corrections staff attorney Emily Dennis amplified on NTC's position. Ms. Dennis indicated that Dr. Noe was an unclassified employee who was terminated without cause from a Physician III position at NTC on November 22, 2002. Continuing, Ms. Dennis observed:
The Department denies Ms. Turner's allegation that the institution - Northpoint Training Center - knowingly violated Kentucky Open Records law when it withheld a copy of the investigation regarding Dr. Noe. KRS 18A.095 lays the statutory foundation for an agency decision to dismiss an unclassified employee without cause. While KRS 18A.095(2) provides that employees in the classified service with status shall not be dismissed, demoted, suspended, or otherwise penalized except for cause, there is no similar provision for unclassified employees. As the Kentucky Supreme Court has stated, "An unclassified employee is," by definition, "A political employee, not a merit employee, and may be discharged for any reason, including a bad reason, no reason or for political reasons." Martin v. Corrections, 822 S.W.2d 858, 860 (1991).
Dr. George W. Noe was dismissed without cause on November 22, 2002. The document generated in connection with the investigation of Dr. Noe prior to his dismissal is a preliminary document as set forth in KRS 61.878(1)(j), which specifically exempts it from disclosure. The Department disagrees with Ms. Turner's characterization that the investigation was incorporated in its final determination to dismiss Dr. Noe since he was specifically dismissed without cause. The document at issue contains opinions from multiple sources and is the type of preliminary document contemplated by the legislature in enacting the exception at KRS 61.878(1)(j). To require the Department to disclose an investigation of this nature would make the statutory prerogative to discharge unclassified employees without cause meaningless.
While we agree with Ms. Dennis's analysis as it relates to the public's right of access to the investigative report generally, we find that because Ms. Turner is a public agency employee, and because the investigative report relates, in part, to her, she is entitled to inspect and receive a copy of those portions of the report relating to her complaint and interview by virtue of KRS 61.878(3).
KRS 61.878(3) 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 repeatedly recognized:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised States only. See, for example, OAG 870-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register. " When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4 (emphasis added). As a public agency employee, Ms. Turner is endowed with a broader right of access to records relating to her than the public's general right of access to those records. Records which would otherwise be shielded from disclosure as preliminary drafts or notes (KRS 61.878(1)(i)), or preliminary recommendations or memoranda in which opinions are expressed (KRS 61.878(1)(j)), as to third persons, must be made available to Ms. Turner if they relate to her. See 97-ORD-161; 98-ORD-81; 99-ORD-3; 00-ORD-111; 03-ORD-015.
The language of KRS 61.878(3) is clear and direct. Public agency employees are entitled to inspect and copy "any record, including preliminary and other supporting documents that relate[] to [them]." Ms. Turner is an employee at Northpoint Training Center. Portions of the investigative report, which we have reviewed under authority of KRS 61.880(2)(i), 1 relate to her complaint against Dr. Noe and her subsequent interview. 2 She is therefore entitled to inspect and copy these portions of the report.
This holding does not extend to the remainder of the investigative report. As Ms. Turner correctly notes, in City of Louisville v. Courier-Journal and Louisville Times, above, the Kentucky Court of Appeals declared that preliminary records of an investigative nature forfeit their preliminary characterization, if they are adopted by a public agency "as part of [the agency's] final action. " See also, Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953, 957 (1983) (holding that "those documents defined in Subsections [(i)] and [(j)] [of KRS 61.878(1)] which become a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records . . ."); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (1992) (ratifying the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.")
Echoing this position, in 97-ORD-168 the Attorney General determined that a law enforcement agency improperly withheld investigative records when the evidence presented confirmed that the agency's final decision-maker "adopted the findings and recommendations of the investigative officer by affixing his signature to the report." See also 02-ORD-25 (holding that a law enforcement agency improperly withheld investigative report when final decision-maker affirmatively stated, in record documenting final agency dismissal of a complaint, that he had "review[ed] and read[] all documentation in regards to . . . Investigation # 180," and he "concur[red] with the [investigators] that there is no evidence to support [the complaint]," thereby adopting that report); 01-ORD-123; and 02-ORD-18; compare 01-ORD-83 (affirming law enforcement agency's denial of request for investigative files where record on appeal demonstrated that final decision-maker did not adopt written findings of fact or recommendations contained therein as the basis for his final action) .
Under the analysis established in City of Louisville, and succeeding authorities cited above, resolution of the issue of whether preliminary investigative materials forfeited their preliminary status would normally turn on a determination of whether the agency adopted the materials as the basis for its final action. In the appeal before us, however, the employee against whom complaints were lodged and an investigation conducted was an unclassified employee who was dismissed without cause. The letter to Dr. Noe advising him of his dismissal thus states:
Effective close of business Friday, November 22, 2002, your services as a Physician III at the Northpoint Training Center are no longer needed.
Pursuant to KRS 18A.095, as an unclassified employee who is not being dismissed for cause, you do not have a right to appeal this action to the Personnel Board except as provided in K.R.S. 19A.095.
Where, as here, an unclassified employee is dismissed without cause, we are unable to make the determination that investigative materials were or were not adopted as the basis of final agency action and therefore did or did not forfeit their preliminary characterization and exempt status. Those materials, perforce, remain preliminary and enjoy continuing protection from public inspection pursuant to KRS 61.878(1)(j). Although Ms. Turner may, by virtue of KRS 61.878(3), inspect and copy those portions of the investigative report that pertain to her, neither she nor the public generally may otherwise inspect or obtain a copy of that report.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5)(a). 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 KRS 61.880(2)(c) provides, in part, that in reviewing the record on appeal, "the Attorney General may . . . request a copy of the records involved but they shall not be disclosed."
2 Where Ms. Turner's name appears in the same sentence or paragraph with the names of other individuals, we believe that NTC may, consistent with the discussion that follows and KRS 61.878(4), redact those names.