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 Kentucky Commission on Human Rights violated the Kentucky Open Records Act in partially denying the request of Douglas Lanier for copies of "notes, incident reports or related documents from any witnesses or other parties" concerning the incident which occurred on April 8, 2005, his "complete personnel file, " and both the "time log, sign[-]in/out sheets for the Enforcement Officers," and "call records and walk[-]in log" for April 7, 2005. Because Mr. Lanier is a "public agency employee," the requested records relate to him, and the subject investigation is apparently not ongoing, Mr. Lanier is entitled to copies of the requested records still at issue by virtue of KRS 61.878(3), regardless of whether those records are preliminary and would otherwise be exempt. Accordingly, the KCHR violated the Open Records Act in denying Mr. Lanier's request on the basis of KRS 61.878(1)(i).
By letter dated April 14, 2005, Mr. Lanier requested specific "public information concerning an incident involving William Suarez" and himself on April 8, 2005, as well as an "opportunity to copy and examine" his personnel file "as maintained by" the KCHR. More specifically, Mr. Lanier framed his request as follows:
1. Any notes, incident reports or related documents from any witnesses or other parties to the above dated incident. This list is inclusive and not limited to: William Suarez, Cynthia Thornburg, Mary Davis, Jackie Davis-Patterson, Addie Williams, Linda Murnane and myself.
2. Provide an opportunity and the facilities for me to copy my complete personnel file, to include any agency notes, related documents and other material, regardless of who the custodian of the material is. The request includes any supervisors, managers, personnel agent, the executive director, her assistant, and any other person who may maintain information concerning myself.
3. Provide a copy of the time log, sign-in/out sheets for the Enforcement Officers dated April 7, 2005.
4. Provide a copy of the call records and walk-in log for April 7, 2005.
In response, Linda Strite Murnane, Executive Director, partially denied Mr. Lanier's request, enclosing copies of those unidentified records that are subject to inspection in her view. Citing KRS 61.878(1)(l), pursuant to which public agencies are authorized to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," Ms. Murnane advised Mr. Lanier that "other documents" could not be released without providing even a general description of those records to which this exception purportedly applies. 1 As correctly observed by Ms. Murnane, KRS 61.878(1)(l) "operates in tandem with KR[E] 503" to exclude from application of the Open Records Act public records containing information protected by the attorney-client privilege. In addition, Ms. Murnane cites KRS 61.878(1)(i), pursuant to which public agencies are authorized to withhold "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and implicitly relies upon KRS 61.878(1)(j) , which excludes from inspection preliminary recommendations or memoranda in which opinions are expressed or policies formulated or recommended. Noticeably absent is any explanation of how either exception applies to the specific records withheld as required by KRS 61.880(1).
As to the remaining records, Ms. Murnane advised Mr. Lanier that he would be allowed to review his personnel file pursuant to KRS 18A.020(3), which provides that "upon written request, an employee shall have the right to examine his personnel file. Any employee may comment in writing on any item in his file." Such comments "shall be made a part of his file and shall be attached to the specific record or document to which they pertain." Citing KRS 18A.020(4), which provides that upon request a state employee "shall have the right to inspect and to copy any record and preliminary documentation and other supporting documentation that relates to him except examination materials," and KRS 61.878(3), Ms. Murnane seemingly agreed to honor Mr. Lanier's request to review those files maintained by others which relate to him.
On May 13, 2005, Mr. Lanier initiated this appeal from the partial denial of his request by the KCHR. As clarified by Mr. Lanier:
As outlined in the letter under numeral #1, certain documents were requested and were denied. The documents denied are pertaining to employee interviews conducted by the Executive Director, Ms. Linda Murnane. These interviews were used as a basis for disciplinary action against me.
Based upon the evidence of record, this office assumes that the KCHR has honored Mr. Lanier's request as to the remaining categories of records. Accordingly, the sole substantive issue presented by this appeal is whether the KCHR properly relied upon KRS 61.878(1)(i) in denying Mr. Lanier's request for copies of any "notes, incident reports, or related documents from any witnesses or other parties" to the incident in question. 2
Upon receiving notification of Mr. Lanier's appeal from this office, Ms. Murnane elaborated upon the position of the KCHR. Citing OAG 91-128, "in regards to KRS 18A.020," Ms. Murnane argues that an agency "is not precluded from withholding records under KRS 61.878(1)(a) through (j) when a request is made by an employee for records pertaining to him." Without further explanation, Ms. Murnane again quotes the language of KRS 61.878(1)(i), reiterating that the KCHR is "withholding any preliminary drafts, notes, and correspondence with private individuals." Attached to the supplemental response of the KCHR are copies of notes "from an interview with" Mr. Lanier which the KCHR has now provided to Mr. Lanier in partial satisfaction of his request. 3
To begin, OAG 91-128, upon which the KCHR relies in support of its position, is based upon the former version of KRS 61.878(3). Although this provision previously referenced only "state employee [s]," and was interpreted by this office as being applicable only to state personnel governed by Chapter 18A of the Kentucky Revised Statutes, KRS 61.878(3) now encompasses, by its express terms, all "public agency employee[s], including university employees." OAG 91-133; OAG 91-128; OAG 90-83; OAG 87-50. In 93-ORD-19, this office therefore concluded that KRS 61.878(3) overrides any of the exemptions codified at KRS 61.878(1), with the exception of those noted in the concluding sentence of the provision, when the request is submitted by a public agency employee. Id., p. 2. To the extent that prior decisions are inconsistent with this holding, those decisions were expressly modified by 93-ORD-19 to reflect the 1992 amendment to KRS 61.878(3). Accordingly, the interpretation of KRS 61.878(3) by the KCHR is contrary to governing precedent.
Resolution of the instant appeal necessarily turns upon the meaning of 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).
In construing this provision, the Attorney General has repeatedly recognized:
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. . . . When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public 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.
95-ORD-97, p. 4; 98-ORD-114. Because the KCHR does not invoke KRS 61.878(1)(k) and 61.878(1)(l), nor does either provision apply on the facts presented, the KCHR must disclose the requested records, which are not characterized as "examinations," but clearly apply to Mr. Lanier, absent an ongoing investigation.
As a public agency employee, Mr. Lanier is endowed with a broader right of access to records relating to him than the right of the general public to access those same records. Records which would otherwise be shielded from disclosure as preliminary drafts or notes pursuant to KRS 61.878(1)(i), or as preliminary recommendations or memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, must be made available to Mr. Lanier if those records relate to him assuming the records are not examinations or records relating to ongoing criminal or administrative investigations being conducted by the KCHR. 4 See 03-ORD-015; 00-ORD-111; 99-ORD-3; 98-ORD-81; 97-ORD-161.
In a long line of decisions, the Attorney General has affirmed denials by public agencies of requests for preliminary notes used in formulating recommendations pursuant to KRS 61.878(1)(i) and (j) based on this theory:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an atmosphere among staff members whereby they express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4; See also 97-ORD-97; OAG 90-97; OAG 89-39; OAG 88-24; OAG 86-64. Underlying these decisions is the following fundamental principle:
Not every paper in the office of a public agency is . . . subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i) . Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer used in hammering out official action within the function of his office.
OAG 78-626, p. 2; See also 98-ORD-144; 97-ORD-73. However, when the request for preliminary records is submitted by a public agency employee such as Mr. Lanier, and the records (notes, etc.) relate to him, this line of decisions is not controlling. At this point, KRS 61.878(3) comes into play as evidenced by the foregoing.
It is beyond dispute that Mr. Lanier 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 him than a member of the general public. By its express terms, KRS 61.878(3) authorizes Mr. Lanier to inspect and/or copy any record that relates to him with the exception of examinations and any documents relating to ongoing criminal or administrative investigations by an agency. Despite having two opportunities to respond, the KCHR does not assert that the notes in question do not relate to Mr. Lanier, nor does this seem plausible on the facts presented. Accordingly, the remaining question is whether the subject investigation, the existence of which is established, is ongoing. On appeal, Mr. Lanier contends that the interviews during which the requested notes were generated "were used as a basis for disciplinary action" against him, with the necessary implication being that the investigation has been completed; the KCHR does not dispute this assertion. Absent objective evidence to the contrary, this office has no reason to question Mr. Lanier's veracity.
In 93-ORD-71, this office held that the Shelby County Public Schools improperly withheld records reflecting the identities of evaluators along with their comments. Of particular relevance here, the Attorney General reasoned:
that release of the cover sheets disclosing the names of the evaluators is likely to have a chilling effect on candor and frankness in the evaluation process. It is not for this Office, however, to comment on the wisdom of legislation, but to interpret and implement that legislation.
Id., p. 3. KRS 61.878(3) is unambiguous. A public agency employee is entitled to inspect and copy "any record, including preliminary and other supporting documentation that relates to him." Mr. Lanier is an employee of the KCHR, the notes at issue relate to him, and the subject investigation is not ongoing. See 00-ORD-159; 93-ORD-24; Compare 98-ORD-114. That being the case, the KCHR must provide Mr. Lanier with copies of any preliminary records which are responsive to his request upon receipt of payment. KRS 61.874(1) and (3).
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.
Footnotes
Footnotes
1 On this issue, the analysis contained in 04-ORD-087, a copy of which is attached hereto and incorporated by reference, is equally determinative here. As in 04-ORD-187, 00-ORD-111, and 00-ORD-10, the agency has not adequately explained how the privilege applies to the record or records withheld as mandated by KRS 61.880(1) and KRE 503. Although the KCHR is certainly entitled to withhold those records which qualify for exclusion as confidential communications between attorney and client, even in this context, the KCHR must identify the record being withheld, and articulate the basis for denial in terms of the privilege in order to fully discharge its statutory duty in this respect. Application of KRS 61.878(3) does not alter the analysis. See 00-ORD-111.
2 As a public agency, the KCHR is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records. KRS 61.880(1) contains the procedural guidelines to which a public agency must adhere in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-must less amount to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-163; 04-ORD-106. In short, a public agency such as the KCHR must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. It is clear that a "bare assertion relative to the basis for denial" does not satisfy the burden of proof. 00-ORD-10, pp. 11, citing 95-ORD-61, p. 2. Neither the initial response nor the supplemental response of the KCHR contains the specificity envisioned by KRS 61.880(1). From a procedural standpoint, the KCHR violated the Open Records Act in failing to comply with this statutory mandate. In responding to future requests, the KCHR should be guided by the longstanding principle that the procedural requirements of the Act "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; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
3 By letter dated may 20, 2005, Mr. Lanier disputes the position of the KCHR on appeal, arguing that a "public agency employee is not a private individual" for purposes of KRS 61.878(1)(i).
4 In contrast, the Attorney General has recognized that a public agency employee is entitled to review records relating to an administrative investigation initiated by the employee. In 93-ORD-19, for example, 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 taken by an officer of the agency during an investigation of a complaint filed by the employee to whom the notes related.