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 Laurel County Sheriff's Office violated the Open Records Act in the disposition of Kristen A. Bailey's August 15, 2003 request for personnel records relating to Greg Poynter and Brad Mitchell, including disciplinary records relating to these individuals, and records arising from "any internal investigation of the incident for which Randy 'Bugs' Creech has been charged for attempted murder on October 29, 2002." Having received no response to her request, Ms. Bailey initiated this appeal on September 9, 2003, and on September 12, 2003, this office issued notification of receipt of her appeal in the department. For the reasons that follow, we make no finding on the issue of the department's compliance with the procedural requirements of the Act, but find that its denial of Ms. Bailey's request violated the substantive requirements of the Act.
By letter faxed to this office on September 16, 2003, Chief Deputy Buddy Blair responded to Ms. Bailey's appeal. He advised that the department did not receive an open records request from Ms. Bailey, an Assistant Public Advocate representing Mr. Creech, "until September 15th 2003 at approximately 12:00 PM." 1 Continuing, Deputy Blair observed:
A response was given to Ms. Bailey immediately after receiving the request on the same day. She was told that there were [sic] no disciplinary action taken against these officers pertaining to the case in question. Information was also given to Ms. Bailey that all internal investigation on the case pertaining to Randy "Bugs" Creech was provided to her in the case report, which she had obtained in discovery. We, at the Laurel County Sheriff's Office will be more than happy to provide Ms. Bailey with any records pertaining to this case that could be in the officers [sic] personnel file, but there are none. All other documents in the file are personal information on the officers.
Deputy Blair did not indicate that the department's response was communicated in writing. Nor did he attach a copy of any written response to Ms. Bailey's request. Because of these factual ambiguities in the record on appeal, we make no finding as to the department's compliance with the procedural requirements of the Open Records Act codified at KRS 61.880(1). 2 Nevertheless, we remind the parties to this appeal that the procedural requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Turning to the substantive issues in this appeal, we find that the department's response was deficient to the extent that it failed to address each of Ms. Bailey's requests and to the extent that it erroneously equated disclosure made in criminal discovery with access to public records under the Kentucky Open Records Act.
To begin, Ms. Bailey requested access to the entire personnel files of the named officers, and not just disciplinary records contained in those files. The department characterized all remaining information in the files as "personal." 3 We disagree. In 03-ORD-112 (copy enclosed) , this office held that the Berea Independent School District improperly denied a request for the complete personnel record of named employees. We reasoned that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," and that the agency must therefore "determine what is and is not subject to Open Records." 03-ORD-012, p. 7. Specifically, we opined:
Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, site the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld.
Id. Fortunately, we noted, there is ample existing authority to guide an agency in making this determination. At page 7 of 03-ORD-012, we quoted extensively from 97-ORD-66:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20, OAG 92-34, 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
97-ORD-66, p. 5, cited in 03-ORD-012, p. 8. Consistent with these decisions, the department should immediately furnish Ms. Bailey with copies of nonexempt records in the personnel files of Officers Poynter and Mitchell that are responsive to her request. Pursuant to KRS 61.872(3) and KRS 61.874(1), the department may require advance payment of reasonable copying charges, not to exceed ten cents per page, and postage charges. Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 01-ORD-136 (enclosed) .
Moreover, Ms. Bailey requested the entire personnel records of the named officers from their date of hire to the present, including, "but not limited to, any disciplinary actions or complaints and any finding on any investigations of the disciplinary actions or complaints." (Emphasis added.) Clearly, Ms. Bailey's request encompassed all nonexempt disciplinary records and not just disciplinary records arising out of "the case in question." Accordingly, if Officers Poynter and Mitchell have been the subject of other disciplinary actions, and those actions have been concluded by the imposition of disciplinary sanctions or the decision to take no action, the complaints that spawned those actions, the record documenting final agency action, and any investigative records adopted as the basis of that final action must be released to her upon prepayment of reasonable copying and postage charges. Palmer v. Driggers, Ky.App., 60 S.W.3d 591 (2001); 01-ORD-123; 02-ORD-18 (copies enclosed) .
With reference to Ms. Bailey's request for records generated in "any internal investigation of the incident for which Randy 'Bugs' Creech has been charged for Attempted Murder on October 29, 2002," including preliminary documentation, findings, recommendations, and disciplinary actions, it is the department's position that because Ms. Bailey was provided with the case report in the course of criminal discovery, the department has no further obligation under the Open Records Act. Again, we disagree. Pursuant to RCr 7.24, the Commonwealth has apparently permitted Ms. Bailey to inspect and copy the case report arising out of this investigation because she is Mr. Creech's attorney and the report may be material to the preparation of his defense. Her right of access as a member of the public to inspect and copy nonexempt public records that "reveal whether the public servants are indeed serving the public," Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 428 (1992), and that enable the public "to be informed as to what their government is doing," Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 829 (1994), rests upon an independent statutory basis, namely the Kentucky Open Records Act. On this issue, the Attorney General has repeated observed:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98; 99-ORD-162; accord, Kentucky Lottery Corporation v. Stewart, Ky.App., 41 S.W.3d 860 (2001) (holding that "the gist of [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation . . . .").
These open records decisions were accompanied by the following cautionary language:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the requested records fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed. The reasoning of the cited open records decision extends to the present appeal.
Under the provisions of the Open Records Act, Ms. Bailey is entitled to inspect and copy records relating to the closed internal investigation arising from the incident involving Randy "Bugs" Creech, including any complaint that spawned the investigation, any record documenting final action by the Laurel County Sheriff's Department, including a decision to take no action, and any records generated in the course of the investigation that were adopted as the basis of that final action. See Palmer v. Drigger, above, and authorities heretofore cited. She stands in the same shoes as any other member of the public relative to her right of access, and can, of course, be required to pre-pay a reasonable copying charge and postage costs incurred.
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.
Distributed to:
Kristen A. BaileyDepartment of Public Advocacy911 North Main StreetP.O. Box 277London, KY 40741
Gene HollonLaurel County Sheriff203 South Broad StreetLondon, KY 40741
Elmer Cunnagin, Jr.Laurel County AttorneyCourthouse, 101 South Main StreetLondon, Ky 40741-2300
Buddy Blair, Chief DeputyLaurel County Sheriff's Department203 South Broad StreetLondon, KY 40741
Footnotes
Footnotes
1 It is unclear whether Ms. Bailey resubmitted her August 15 request to the department on September 15 or the request Deputy Blair referenced accompanied the notification of appeal issued by this office on September 12.
2 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). The custodian is, of course, only required to issue a response upon actual receipt of an open records request.
3 The department did not cite the relevant exception authorizing nondisclosure of public records containing information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, namely KRS 61.878(1)(a). Nor did the department explain how the exception applies to the records withheld.