Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kenton County Fiscal Court violated the Open Records Act in denying Randy Skaggs' December 16, 2003 request for records relating to the dismissal of the Director of Kenton County Animal Control, Aline Summe. For the reasons that follow, we find that the Fiscal Court failed to meets its burden of proof in denying Mr. Skaggs' request.
In his December 16 records application, Mr. Skaggs requested copies of:
1) [Records containing] allegations or charges brought or filed against Ms. Aline Summe by either [Joe Shriver] or any and all departments of the Kenton County Fiscal Court or Kenton County Government;
2) [A]ny and all correspondence between [Mr. Shriver] and Ms. Aline Summe or any and all departments of the Kenton County Fiscal Court or Kenton County Government pertaining to her dismissal or removal from her position as Director of Kenton County Animal Control;
3) [D]ocumentation, letters or financial records indicating or referring to any and all monetary or financial matters immediately prior to and after Ms. Aline Summe's dismissal pertaining to and dealing with her position as Director of Kenton County Animal Control[.]
Mr. Skaggs acknowledged his obligation to prepay for copies, at a rate of ten cents per page, "upon determination of the number of pages to be mailed . . . in addition to the actual mailing costs."
In a response dated December 23, 2003, Assistant Kenton County Attorney Brandon N. Voelker denied Mr. Skaggs' request, advising him as follows:
Per KRS 61.878(1)(a), the records you are requesting are exempt from disclosure based on the fact that they are of a personal nature, which if released would be an invasion of privacy for the employee.
Furthermore, no final action has been taken. In as much, the documents, if any, constitute preliminary recommendations and/or memoranda, not subject to disclosure per KRS 61.878(1)(i). 1
Shortly thereafter, Mr. Skaggs initiated this appeal asserting that "Aline Summe was . . . Director of Kenton County Animal Control . . . for about 18 years . . . [and] thus, a county employee . . . whose office and personal income were both derived from taxpayer supported dollars and . . . whose conduct and business affairs as it pertained to her work are subject to public scrutiny." It was his position that the public has "every right to know why she was terminated."
In supplemental correspondence directed to this office following commencement of Mr. Skaggs' appeal, Mr. Voelker elaborated on his client's position. He explained:
Counsel for Ms. Summe 2 has advised that any dissemination of information that is personal and private shall be actionable in court. Based on discussions with Ms. Summe's attorney, and direction from the Fiscal Court, I am not at liberty to discuss the information contained in the personnel file Mr. Skaggs' request.
Clearly, KRS 61.878(1)(a) exempts from disclosure "records containing information of a personal nature, where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In order to insulate the county and myself from violating Ms. Summe's rights under this statute, I do not think it is appropriate for me to discuss even in general terms Ms. Summe's personnel file.
Certainly, Kenton County and yourself have repeatedly disagreed over the Open Records Act, but one common thread has always existed, it is your job to interpret whether the plain meaning of the statute is being followed, not to second guess determinations by local officials of what would constitute an invasion of a person's privacy. In the event that you decide to engage in this type of investigation, I believe that fundamental due process mandates Ms. Summe and her attorney being provided notice and a chance to respond.
Unable to resolve this appeal on the written record, on January 12, 2004 this office invoked its authority under KRS 61.880(2)(c) 3 and 40 KAR 1:030 4 Section 3 to obtain copies of "the documents that are responsive to Randy Skaggs' December 16, 2003 request." In addition, we asked that the Fiscal Court "advise us, in writing, on what basis it asserts that these records are preliminary and what final action must still be taken relative to Ms. Summe." Continuing, we observed:
With regard to the Kenton County Fiscal Court's apparent concerns relative to threatened actions by Ms. Summe for "dissemination of information that is personal and private," and the assertion that "fundamental due process mandates Ms. Summe and her attorney being provided notice and a chance to respond," we refer the Fiscal Court to Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), recognizing the rights of persons affected by disclosure of public records "to be heard on their exclusion claims . . ." in circuit court. Beckham at 579.
The Attorney General's role in adjudicating a dispute under the Open Records Act consists of "review[ing] the request and denial and issu[ing] within twenty days, excepting Saturdays, Sundays, and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." KRS 61.880(2)(c). This includes examining the propriety of a public agency's reliance on KRS 61.878(1)(a), and public agencies must bear in mind that they have "the burden of proof in sustaining the action . . . ." KRS 61.880(2)(c).
KRS 61.880(2)(c) does not empower the Attorney General to entertain a claim of exemption by a third party. The Supreme Court's decision in Beckham is based on an interpretation of KRS 61.882, which the Court characterized as "dispositive," and which relates to the jurisdiction of circuit courts in open records disputes. Id. at 575. To further elucidate our position, we have enclosed a copy of 98-ORD-24, an open records decision that turns on an interpretation of Beckham.
If, in the Fiscal Court's view, a privacy claim can be legitimately asserted on behalf of Ms. Summe, we trust that the Fiscal Court will assert the claim in the pending appeal. If not, Beckham recognizes Ms. Summe's right to assert her claim for nondisclosure in circuit court.
(Emphasis in original.) We concluded that unless Ms. Summe presented the issue to the appropriate circuit court before the Attorney General rendered his decision on January 29, 2004, we would "have no alternative but to discharge our KRS 61.880(2) duty based on a review of the request, the denial, and the additional documentation requested above." Copies of our letter were mailed to Mr. Skaggs and to Ms. Summe's attorney. We received no response to our letter. 5 Accordingly, our review is, of necessity, confined to Mr. Skaggs' request and the Fiscal Court's denial and supplemental correspondence. That record does not support the Fiscal Court's reliance upon KRS 61.878(1)(a) or (j) and we therefore find that the agency violated the Open Records Act in denying the request.
In 96-ORD-206, this office acknowledged that we were "severely handicapped in conducting our review" by virtue of the agency's refusal to honor our request for copies of the disputed records and to respond to our written inquires. Quoting from an earlier decision, we observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion, nor have we been afforded access to . . . [the disputed record] which we specifically requested.
95-ORD-61, p. 5, cited in 96-ORD-206. Relying on KRS 61.880(2)(c) and 40 KAR 1:030(3), we noted:
[T]he General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted. Because he does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future.
96-ORD-106, p. 5. In both 95-ORD-61 and 96-ORD-206, the Attorney General concluded that the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c). We are constrained to reach the same conclusion in the appeal now before us.
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude 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. " Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "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." Board of Examiners, above. Echoing this view, in Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink, above at 828, 829. If then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in monitoring the dismissal of a prominent public official. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners, above at 327, that "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," KRS 61.871, and that the agency is statutorily assigned the burden of proof. KRS 61.880(2)(c).
Both the courts and this office have addressed the question of access to records documenting allegations of impropriety and involuntary and voluntary separation from public employment. 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, this office has generally held that the privacy interests of public employees against whom complaints have been leveled or allegations made, and the final agency action relative to those complaints or allegations, are outweighed by the public interest in monitoring agency action. Thus, 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; see also 98-ORD-45; 99-ORD-39; 00-ORD-104.
In 00-ORD-104 and 02-ORD-140, the Attorney General expressly recognized the public's right of access to termination notices or records documenting voluntary or involuntary separation from public employment. At pages 9 and 10 of 00-ORD-104, we opined:
[G]iven the compelling pubic interest in disclosure, termination letters must be made available for public inspection. 99-ORD-164; 97-ORD-128; 95-ORD-147. By the same token, if a public employee is separated from public employment voluntarily, through resignation, or by agreement of the parties, through settlement, the public is entitled to inspect records documenting same. With reference to letters of resignation, this office has observed:
94-ORD-108, p. 29. [Footnote omitted.] See also, OAG 81-315; OAG 85-136; 97-ORD-121; 99-ORD-39. With reference to settlement/severance agreements under the terms of which a public employee is separated from employment, the Attorney General has adopted the position of the Kentucky Supreme Court, articulated in Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 473 (1997):
The presence of a confidentiality clause in such an agreement does not alter our analysis inasmuch as such a clause "is not, in general, entitled to protection." Id.; 98-ORD-24; 99-ORD-39; 00-ORD-5. If [a public agency employee] was terminated by [an agency], voluntarily resigned from his employment with the [agency], or entered into a settlement/severance agreement with the [agency], thereby resolving his employment status, [the requester] is entitled to inspect and receive copies of any records in the agency's custody which memorialize these acts.
See also OAG 81-345; 93-ORD-117; 95-ORD-47; 99-ORD-164; 00-ORD-5; 02-ORD-140. 6
The authorities cited represent a small fraction of the existing legal authorities mandating disclosure of records reflecting allegations of public employee misconduct (complaints), resulting disciplinary action (including the decision to take no action), and termination (dismissal) or resignation. Most importantly, we direct the Kenton County Fiscal Court's attention to the Kentucky Court of Appeals' recent decision in Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). In Palmer, the court was asked to determine if records relating to a former police officer, who resigned prior to the imposition of disciplinary measures by the agency, were properly withheld under authority of 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 . . . . 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 . . . . 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 it is unclear whether specific charges were leveled against Ms. Summe, and whether she resigned or was dismissed, "we do not believe that the particular complaints at issue in this appeal, and consequent . . . decisions to take action or not to take action (again, the record is unclear) 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. 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. Ultimately, the court held that records relating to public employee misconduct and discipline (including termination or dismissal) "present[] a matter of unique public interest. " Id. at 599.
As noted above, our ability to effectively review the Kenton County Fiscal Court's denial of Mr. Skaggs' request is impeded by the Fiscal Court's unwillingness to respond to our statutorily authorized inquiries, or to permit us to conduct a statutorily authorized in camera review of the disputed records. We do not know the circumstances of Ms. Summe's departure or the basis for the Fiscal Court's assertion that records relating thereto constitute "preliminary recommendations and/or memoranda."
Given the fact that the Fiscal Court has the burden of proof in sustaining its action, that it has failed to meet this burden of proof, and that the overwhelming weight of legal authority is contrary to the position it takes, we find that Kenton County Fiscal Court violated the Open Records Act in denying Mr. Skaggs' request for records containing allegations or charges brought against Ms. Summe, correspondence between the Kenton County Fiscal Court and Ms. Summe pertaining to her dismissal or departure from her position as Director of Kenton County Animal Control, and financial records or documentation referring to all monetary or financial matters immediately prior to and after Ms. Summe's dismissal or departure. With regard to the latter category of records, we find no support for the proposition that financial records of a public agency qualify for exclusion under the privacy or preliminary documents exceptions, and remind the Fiscal Court that "[a]mounts paid from public coffers are perhaps uniquely of public concern,' OAG 90-30, P. 3, and that "[a]s far as open records are concerned, it is apparently the policy of the legislature that wherever public funds go, public interest follows." OAG 76-648, p. 2.
Although, as we explained in our January 12 letter to the Kenton County Fiscal Court, this office has no authority to entertain a claim of exemption by a third party, such as Ms. Summe and her attorney, we are providing them with a copy of this decision so that Ms. Summe can assess her options. As a corollary of our holding that the Kenton County Fiscal Court violated the Open Records Act in denying Mr. Skaggs' request, we note, in closing, that the Fiscal Court must disclose the disputed records, or appeal our decision 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 any subsequent proceeding.
Randy SkaggsThe Trixie FoundationP. O. Box 1Webbville, KY 41180
Joe Shriver, Esq.Kenton County Building303 Court Street, Room 205Covington, KY 41011
Brandon VoelkerAssistant Kenton County AttorneyKenton County Building303 Court Street, Room 307Covington, KY 41011
Footnotes
Footnotes
1 KRS 61.878(1)(i) authorizes nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence that is intended to give notice of final action of a public agency [.]" The exception for "preliminary recommendations and preliminary memoranda in which opinions are expressed . . ." is found at KRS 61.878(1)(j).
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2 Mr. Voelker referred to Ms. Summe in the preceding paragraph as "a former county employee."
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3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
4 40 KAR 1:030 Section 3 provides: "61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
5 On January 22, 2004, we attempted to contact Mr. Voelker by telephone to ascertain the status of our request and were advised that he was not in the office for the week. We asked if he had assigned his open records duties to another individual in his absence, and were told that his office would attempt to contact him. Although we were later furnished with a telephone number where he might be reached, Mr. Voelker did not contact us until the following week after this decision had been written on the basis of the available information.
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6 Pursuant to KRS 61.878(4), a public agency may exercise its right to mask excepted material of a purely personal nature, such as information relating to personal illness or loss, from nonexcepted material in records documenting voluntary or involuntary separation from public employment before making the nonexcepted material available for examination. 94-ORD-108; 96-ORD-86; 99-ORD-39. It is, however, incumbent on the agency to the explain the statutory basis for the partial nondisclosure of the otherwise open records.
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