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 City of Richmond properly relied on KRS 61.878(1)(l), incorporating KRS 15.400(3) into the Open Records Act, in denying former City of Richmond police officer Ellen Alexander's January 30, 2003, request to inspect "psychological records from when [she] was hired. " For the reasons that follow, we find that the City of Richmond's reliance on these statutes was misplaced and that the city must permit Ms. Alexander to inspect, and obtain copies of, these records.
In a response dated January 30, 2003, General Counsel Garrett T. Fowles notified Ms. Alexander that her request was denied. He explained that KRS 15.400(3) restricts access to records generated in the certification process for peace officers established at KRS 15.380 to 15.404, including records generated in the psychological examination portion of that process. This protection, he explained, extends to all persons, including the peace officer undergoing certification, and overrides a public employee's right to inspect records relating to him or her which is otherwise granted in KRS 61.878(3). In support, Mr. Fowles cited 00-ORD-118 and acknowledged that this is an unclear area of law. Shortly thereafter, Ms. Alexander initiated this appeal, characterizing the records in dispute as her "psychological medical records" and expressing surprise that the referenced statute operates to prohibit her from examining her "own personal medical records."
Because Ms. Alexander was hired in 1992, and therefore was deemed to have met all of the requirements for certification codified at KRS 15.380 to 15.404 pursuant to KRS 15.400(1), the psychological records to which she requested access could not have been generated in the certification process and therefore do not enjoy protection from disclosure under the confidentiality provision found at KRS 15.400(3) . Although third-party access to these records may be restricted on the basis of KRS 61.878(1)(a), we find that Ms. Alexander must be permitted to inspect and obtain copies of these records.
As Mr. Fowles correctly notes, in 00-ORD-118 this office determined that an unsuccessful applicant who sought employment with a law enforcement agency after December 1, 1998, was prohibited from inspecting records relating to his application pursuant to KRS 15.400(3), incorporated into the Open Records Act by KRS 61.878(1)(l). 1 KRS 15.400 provides in full:
(1) The effective date of KRS 15.380 to 15.404 shall be December 1, 1998. All peace officers employed as of December 1, 1998, shall be deemed to have met all the requirements of KRS 15.380 to 15.404 and shall be granted certified status as long as they remain in continuous employment of the agency by which they were employed as of December 1, 1998, or shall have successfully completed an approved basic training course approved and recognized by the Kentucky Law Enforcement Council pursuant to KRS 15.440(1)(d) when seeking employment with another law enforcement agency.
(2) Any peace officers employed after December 1, 1998, shall comply with all minimum standards specified in KRS 15.380 to 15.404. Persons newly employed or appointed after December 1, 1998, shall have one (1) year within which to gain certified status or they shall lose their law enforcement powers.
(3) The Open Records Act notwithstanding, the person's home address, telephone number, date of birth, Social Security number, background investigation, medical examination, psychological examination, and polygraph examination conducted for any person seeking certification pursuant to KRS 15.380 to 15.404 shall not be subject to disclosure.
In construing these provisions, in para materia, the Attorney General held:
[T]o promote the objects of the statute and implement the legislature's intent, we find that the protection afforded by KRS 15.400(3) must be construed to apply to background investigations, medical examinations, psychological examinations, and polygraph examinations, "conducted pursuant to this statute," on all applicants, and not just those applicants who are ultimately employed.
00-ORD-118, p. 5; accord 01-ORD-14. Continuing, we observed:
In 1998, Chapter 15 of the Kentucky Revised Statutes was amended, and a new section introduced establishing standards for officer certification and training. After the effective date of December 1, 1998, an applicant seeking employment, and ultimately peace officer certification, who does not qualify for grandfather status pursuant to KRS 15.400(1), must undergo the investigation and testing process codified at KRS 15.382(1) through (17), including a background investigation, medical examination, psychological examination, and polygraph examination. Peace officers employed prior to December 1, 1998, are deemed to have met the requirements for certification, subject to certain conditions set forth at KRS 15.400(1), and thus enjoy "grandfather status." All others must submit to the rigorous investigative and testing requirements found at KRS 15.382, and elsewhere, as a precondition to employment and certification.
Id. We concluded that "the records of any applicant who submits to mandatory investigation and testing pursuant to KRS 15.382 and 15.400(2), with the goal of employment and certification as a peace officer, are excluded from inspection regardless of the applicant's success in achieving this goal." 2
In 00-ORD-118 and 01-ORD-14, we did not address the issue of whether a peace officer employed prior to December 1, 1998, who enjoys "grandfather status" for certification purposes and who has not undergone the rigorous investigative and testing requirements found at KRS 15.382 and elsewhere, is precluded from inspecting psychological records relating to him or her that were not created as a result of KRS 15.382 investigation and testing. Because the confidentiality provision codified at KRS 15.400(3) does not extend by its express terms to pre-December 1, 1998, psychological examination records, and because Ms. Alexander was employed in 1992, we find that it does not apply to psychological records in the City of Richmond's custody that relate to her.
Given these findings, we conclude that Ms. Alexander is entitled to inspect and receive copies of her psychological records under authority of 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.
This statute, endowing a public employee with a right of access to records relating to him or her that is greater than the right of access to those records that the public enjoys, is not, in this case, superceded by the specific confidentiality provision found at KRS 15.400(3). Compare 00-ORD-118, p. 6. It is our opinion, therefore, that the city's reliance on KRS 15.400(3) was misplaced.
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.
Ellen Alexander1055 Old Boonesboro RoadRichmond, KY 40475
Kay WorthamCustodian of RecordsCity of RichmondP.O. Box 250239 West Main StreetRichmond, KY 40476
Garrett T. FowlesGeneral CounselCity of RichmondP.O. Box 250239 West Main StreetRichmond, KY 40476
Footnotes
Footnotes
1 KRS 61.878(1)(l) requires 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.
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2 In 2002, this section was amended and the phrase "conducted pursuant to this statute" omitted to clarify, as we understand it, that its protection was intended to reach the records of both successful and unsuccessful applicants.
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