Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ryan H. Halloran, Assistant Attorney General
Open Records Decision
This is an appeal under the Open Records Act by The Kentucky Enquirer newspaper contesting the decision of the jailer of the Grant County Detention Center to withhold records requested by the newspaper. The records contain information on detention center personnel and on formal complaints or grievances filed by inmates or their relatives. The newspaper made the request by letter dated April 11, 2003. The jailer responded on May 23, 2003, after the newspaper initiated this appeal. The Act requires a written response within three (3) days. See KRS 61.880(1). We decide that the jailer violated the three-day requirement and should have disclosed the records requested by the newspaper.
The jailer contends that the records withheld are exempt from disclosure based on KRS 61.878(1)(a) and KRS 61.878(1)(h). KRS 61.878(1)(a) exempts records if their disclosure would cause a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(h) exempts records if their disclosure would cause a law enforcement agency harm by identifying informants not otherwise known or by premature release of information that is to be used in a prosecution.
The request of the newspaper described the records sought as follows:
1. Deputy Powell's, Sgt. Sydnor's, and Deputy Coleman's prior work history, date of hire, salary, photograph, educational qualifications, on-the-job misconduct complaints and charges of misconduct, any documents showing final action taken.
2. Any disciplinary actions taken against any jail employees since January 2002.
3. Any formal complaints or grievances made by an inmate or their relatives since January 2002.
The jailer cites the privacy exemption contained in KRS 61.878 (1) (a) and the law enforcement exemption contained in KRS 61.878(1) (h) as grounds to withhold the records described in item 1. The jailer makes no explanation as to how the right to privacy applies to the records or how the public employees' rights to privacy will be violated by disclosure. The Act requires such an explanation. KRS 61.880(1) and Edmondson v. Alig, Ky., App., 926 S. W. 2d 856, 858(1996). Without the explanation required by the Act we decide the privacy exemption does not apply to the records described in item 1. For the same reason, we decide that the exemption does not apply to the records described in item 2.
The jailer points out that there is litigation in the Federal District Court pending and cites the exemption for law enforcement agencies contained in KRS 61.878 (1) (h) as further grounds to withhold the records described in item 1. He does not explain how KRS 61.878(1)(h) applies to him or to the civil litigation in federal court. No mention is made of a prospective law enforcement action or an administrative adjudication by the jailer. Again, without an explanation from the jailer he cannot rely on the exemption. It should be pointed out that this office has previously decided that educational and training backgrounds of public employees, their disciplinary records, and complaints about their conduct on the public payroll must be disclosed under the Open Records Act. See 00-ORD-137. For the foregoing reasons we decide that the jailer should have disclosed the records described in items 1 and 2.
With regard to the newspaper's request for formal complaints or grievances made by an inmate or their relatives since January 2002, (item 3), the jailer cites, in addition to the privacy exemption, the case of Ky. Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., Ky., 826 S.W.2d 324, (1992). The case dealt with an administrative proceeding against a treating psychologist for sexual misconduct with patients. The court decided that complaint files held by the Board of Examiners of Psychologists were exempt from disclosure under the privacy exemption contained in KRS 61.878(1)(a). The complaint files sought by the newspaper in that case included statements made to the psychologist by patients for the purposes of treatment. It is clear from the opinion that the court sought to protect the privacy of the patients and not that of the offending psychologist. The jailer does not explain how the information in the complaint files dealt with in the court opinion is similar to that in the complaints and grievances of the inmates and their relatives. We have been offered no good reason why complaints and grievances concerning the conduct of public employees in performing public duties should be exempt from public disclosure under the privacy exemption of the Open Records Act. The rule is that they are not. 00-ORD-137. Likewise, we are given no reason why inmates or their relatives would expect their written grievances and complaints against a public agency and its employees to be considered private. In Kentucky Board of Examiners of Psychologists the court gave weight to the fact that the conduct of the public agency involved was not in question and this reduced the public interest in the citizen's right to know how public agencies are performing. See Id. at 328. In this appeal we are given no information from the jailer on this issue, but can glean from the limited information given that the operation of the detention center is an issue. In those circumstances and without more information we find that the records should be disclosed.
Accordingly, we decide that the jailer violated the Open Records Act by failing to respond to the request of the newspaper within three (3) days, and by failing to disclose the records sought by the newspaper .
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.
Jim Hannah The Kentucky Enquirer 226 Grandview DriveFort Mitchell, KY 41017
Steven Kellam, Jailer Grant Co. Detention Center 212 Barnes RoadWilliamstown, KY 41097
Thomas R. NienaberThe Horwitz Law Firm, P.S.C.541 Buttermilk Pike, Ste. 305Crescent Springs, KY 41017-1689
Edward J. LorenzGrant Co. AttorneyGrant Co. Courthouse101 North Main StreetWilliamstown, KY 41097