Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in denying the request of Rochelle Brown, a Patient Aide II at Western State Hospital, for "all documents and statements" substantiating the allegation of "patient abuse" that was made against her on June 14, 2004, which were generated during the investigation "that was concluded no later th[a]n June 16[, 2004,]" on the basis of KRS 61.878(3). By its express terms, KRS 61.878(3) precludes public employees such as Ms. Brown from inspecting or copying records "relating to ongoing criminal or administrative investigations by an agency." Accordingly, the Cabinet properly relied upon KRS 61.878(3) in denying Ms. Brown's request for records relating to the ongoing administrative investigation which prompted this appeal.
In a "Memorandum" directed to Jim Hayes on July 23, 2004, Ms. Brown requested access to the specified investigatory records, simultaneously expressing her total disagreement "with the request for Major Disciplinary Action [,]" a copy of which is attached to her letter of appeal. 1 By letter dated August 2, 2004, J. P. Hamm, Executive Director, Office of Human Resource Management, responded to Ms. Brown's request on behalf of the Cabinet. 2 In denying Ms. Brown's request, Mr. Hamm explained:
The documents you requested are part of an on[going] administrative investigation; therefore, I must deny your request in accordance with KRS 61.878(3). While the facility's portion of the investigation is complete, the investigation is considered on[going] until the Office of Human Resource Management completes a review and the Appointing Authority issues a notice of final action in regards to the allegations [which prompted] the investigation. You will receive official notice when a final decision is made, and you may re[submit] your request for records on receipt of that notice. 3
In a letter received by this office on September 7, 2004, Ms. Brown appeals from the Cabinet's denial, arguing that she is "not requesting a copy of public records. " 4 In Ms. Brown's view, her "work record" is not "a part of public records, " 5 and her request is for records regarding the "alleged incident of patient abuse," specifically, "what [she] was alleged to have done, and who may have made these allegations," as well as the "dates and times of these allegations." Attached to Ms. Brown's appeal are copies of the "Standardized investigation notification to employee" form signed, dated and received by Ms. Brown on June 14, 2004, as well as the "Standardized return to patient care area form" signed, dated and received by Ms. Brown on June 16, 2004, both of which are signed by Libby Howe RN. 6
Upon receiving notification of Ms. Brown's appeal from this office, John H. Walker, Assistant General Counsel, elaborated upon the Cabinet's position. As confirmed by Mr. Walker, Western State found the allegations against Ms. Brown to be unsubstantiated following an initial review of the matter. "Upon further review of the previously compiled information, it has been determined that the allegation of patient abuse" was substantiated. Because resolution of this appeal turns on whether the subject investigation is ongoing, it is instructive to quote Mr. Walker's explanation of the review process in its entirety:
The Human Resources office of the Cabinet is continuing to review this matter, and Ms. Brown has been advised that major disciplinary action is pending. No notice of either initial or final agency action has been issued. Until such time as a final decision of agency disciplinary action is made and issued to Ms. Brown, the records compiled by the agency during its review and investigation of potential violations of statutes or regulations governing the conduct of patient aides toward patients is confidential pursuant to KRS 61.878(1)(h) in that premature disclosure of information contained in those records could compromise the integrity of that investigation. The documents are also considered preliminary recommendation [s and] memoranda in which opinions are expressed or policies formulated pursuant to KRS 61.878(1)(j).
Once any initial decision to take disciplinary action has been made, Ms. Brown will receive a notice of intent letter outlining the statutory or regulatory violation; the specific action or activity on which the intent to dismiss is based; the date, time, and place of that activity; and the name[s] of the parties involved. Ms. Brown will also be given notice of an opportunity to come to a meeting with representatives of the Appointing Authority to discuss the findings set forth in the initial letter and to call to the attention of the Appointing Authority any facts which she believes should be taken into consideration before a final notice of intent letter is issued. This initial notice of intent letter will fully comply with the requirements of KRS 18A.095(3)(a) and (b). 7 At this meeting, Ms. Brown will have knowledge of the specific allegations against her, when and where the activity took place, and the specific violations alleged. Typically, if there are witnesses upon which the Appointing Authority relies who saw the conduct in question, those witnesses are identified in the initial letter of intent. When action is taken, Ms. Brown will know everything necessary to address the allegations during the pre-disciplinary meeting.
Within five (5) days of the meeting on the initial letter of intent, the Appointing [A]uthority will either determine not to proceed with disciplinary action or will issue a final letter of intent. See KRS 18A.095(7). The action taken could and sometimes does change based upon information made available to the Appointing Authority during the pre-disciplinary meeting. It would be premature and potentially misleading to the employee to release these records prior to a final decision having been made. Upon the issuance of the final letter, the records of the Appointing Authority in support of its action are no longer covered by KRS 61.878(1)(h) and (j) and are available to Ms. Brown.
It is the decision of this office that the Cabinet's invocation of KRS 61.878(3) on the facts presented is entirely consistent with governing authority. Our analysis necessarily begins with the relevant statutory language. KRS 61.878(3) provides:
No exemption of 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. (Emphasis added). 8
In construing this provision, the Attorney General has long recognized:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), 9 [1] with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
95-ORD-97, p. 4 (Emphasis added); 98-ORD-114. Such is the case here.
In 93-ORD-37, this office affirmed a denial by the Cabinet for Human Resources of an attorney's request for records relating to the Cabinet's investigation into allegations against her client, an employee at the Owensboro Treatment Center, on the basis of KRS 61.878(3). More specifically, our decision in 93-ORD-37 was premised on the mandatory language found in the last sentence of KRS 61.878(3). Likewise, in 93-ORD-74, this office held that the Kentucky Department of Education properly relied upon KRS 61.878(3) in partially denying the request of an attorney for records relating to the Department's investigation into violations of state school laws and regulations allegedly committed by his client, a teacher employed by the Webster County Public Schools.
In contrast, the Attorney General has recognized that a public agency employee is entitled to review records relating to an administrative action which the employee initiated. For example, in 93-ORD-19, this office held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer during the course of investigating a formal complaint filed by the employee, even though the notes were otherwise exempt under KRS 61.878(1)(i). In 93-ORD-24, this office reaffirmed 93-ORD-19, holding that the agency improperly withheld handwritten notes prepared by an officer of the agency during an investigation of a complaint filed by the employee to whom the notes related.
It is beyond dispute that Ms. Brown is a "public agency employee" within the meaning of KRS 61.878(3), and therefore enjoys a broader right of access to records relating to her than a member of the general public. By its express terms, KRS 61.878(3) authorizes Ms. Brown to inspect and/or copy any record that relates to her with the exception of any documents relating to ongoing criminal or administrative investigations by an agency. Records which would otherwise be shielded from disclosure as preliminary drafts or notes (KRS 61.878(1)(i)), or preliminary recommendations and memoranda in which opinions are expressed or policies formulated (KRS 61.878(1)(j)), if requested by a third party, are subject to inspection by Ms. Brown assuming the records relate to her in the absence of an ongoing investigation. 03-ORD-030; 03-ORD-118; 03-ORD-015; 00-ORD-111; 99-ORD-3; 98-ORD-81; 97-ORD-161. However, the concluding sentence of KRS 61.878(3) suspends the right of access granted to public agency employees by this provision when the employee is the subject of an ongoing investigation.
Although the subject investigation is complete as to the role played by Western State, the Cabinet has affirmatively indicated that the investigation is considered ongoing "until the Office of Human Resource Management completes a review and the Appointing Authority issues a notice of final action" with regard to the allegations which prompted the investigation, an assertion which is supported by the record. That being the case, 93-ORD-74 and 93-ORD-37 are controlling. Because the records at issue relate to an ongoing investigation, the Cabinet properly denied Ms. Brown's request on the basis of KRS 61.878(3). In light of this determination, analysis of the remaining arguments raised by the Cabinet is unnecessary.
A party aggrieved by this decision may appeal it by initiating an 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.
Rochelle Brown305 Lucky DebonairHopkinsville, KY 42240
J.P. HammExecutive DirectorCabinet for Health and Family ServicesOffice of Human Resource Management275 East Main Street, 5W-DFrankfort, KY 40621-0001
John H. WalkerAssistant General CounselCabinet for Health and Family Services275 East Main Street, 5W-AFrankfort, KY 40621
Footnotes
Footnotes
1 In a memorandum directed to Mr. Hayes on July 13, 2004, Betty Estes RN, Charge Nurse, outlines her reasons for requesting "that majordisciplinary action be taken against" Ms. Brown. According to Ms. Estes:
On June 14, 2004, an allegation of patient abuse was made against Rochelle Brown PAII, in regard to an incident that took place on 55BA on June 14, 2004 at 0905. An investigation was completed and Rochelle Brown PAII was cleared and returned to the patient care area on June 16, 2004.
With further internal investigation completed[,] it was determined that the allegation of patient abuse of June 14, 2004 was substantiated, and you were again pulled from the patient care area on June 25, 2004.
On July 21, 2004 Rochelle Brown PAII was informed that a major corrective action was being submitted and she was given the opportunity to respond. A "Notice of Request for Major Disciplinary Action" is attached.
(Emphasis added).
2 Presumably, Western State directed Ms. Brown's request to the Office of Human Resource Management for response consistent with Cabinet protocol.
3 As used in Chapter 18A, which governs State Personnel, "Appointing Authority" means:
. . .the agency head or any person whom he has authorized by law to designate to act on behalf of the agency with respect to employee appointments, position establishments, payroll documents, register requests, waiver requests, requests for certification, or other position actions. Such designation shall be in writing and signed by both the agency head and his designee. Prior to the exercise of appointing authority, such designation shall be filed with the secretary[.]
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4 By letter dated August 20, 2004, Ms. Brown attempted to file an appeal with this office. At that time, however, Ms. Brown did not provide us with a copy of her written request as expressly required by KRS 61.880(2)(a) to perfect an appeal. Pursuant to 40 KAR 1:030, Section 1: "The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." Upon receiving correspondence from this office advising her of this deficiency, Ms. Brown resubmitted her appeal along with the required documentation. Accordingly, this matter is now ripe for review.
5 To clarify, KRS 61.871 provides: "The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest. ." (Emphasis added). In other words, the Open Records Act governs access to public records exclusively. For purposes of the Open Records Act, the definition of a "public record" is codified at KRS 61.870(2).
6 Also attached is an identical " Standardized investigation notification to employee" form which was signed, dated and received by Ms. Brown when she was removed from direct patient care on June 25, 2004, which was also authenticated by her shift supervisor at the time, A. Hansley RN. As evidenced by a notation located at the bottom of these internal documents, the original of each is kept in the shift supervisor's file. Each of these standardized forms are clearly identified as belonging to the "Western State Hospital Nursing Department" and apparently derive from a manual entitled "Nursing Investigative Process . . ." Although a box has been checked on the latter form indicating to Ms. Brown that the "investigation has been completed and you were cleared[,]" this refers to the phase of the investigation conducted by Western State. In short, the Cabinet's review apparently begins when Western State's internal investigation ends. Contrary to Ms. Brown's implicit assumption, then, the fact that Western State's initial review and investigation of the matter has been completed is not determinative.
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7 KRS 18A.095(3) provides:
Prior to dismissal, a classified employee with status shall be notified in writing of the intent to dismiss him. The notice shall also state:
(a) The specific reasons for dismissal including:
1. The statutory or regulatory violation;
2. The specific action or activity on which the intent to dismiss is based;
3. The date, time, and place of such action or activity;
4. The name of the parties involved; and
(b) That the employee has the right to appear personally, or with the counsel if he has retained counsel, to reply to the head of the cabinet or agency or his designee.
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8 As repeatedly observed by this office:
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 Statutes only. See, for example, OAG 87-50; 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. " . . . 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); 01-ORD-246, pp. 11-13.
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9 KRS 61.878(1)(k) and (l) exclude from application of the Open Records Act: "All public records or information the disclosure of which is prohibited by federal law or regulation[,]" and "restricted or otherwise made confidential by enactment of the General Assembly[,]" respectively.
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