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 Education Cabinet properly relied on KRS 341.190 and KRS 151B.280(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 in denying Martha C. Gray's June 6, 2005, request to inspect and copy "all decisions of the Kentucky Unemployment Insurance Commission for 2004 and the months of January thru May of 2005 that relate to the issue of who is considered to be a employer for purposes of having to pay state unemployment insurance tax." For the reasons that follow, we affirm the Education Cabinet's denial of Ms. Gray's request. As a corollary of this holding, we overrule OAG 83-405 on the basis of subsequent amendments to the law.
In her letter of appeal, Ms. Gray questions the Cabinet's reliance on KRS 341.190, noting that the requested records "are not records provided by an employer or an employee in the course of an investigation nor are they compilations of confidential information generated by the UI Division or Commission." They are, instead, "copies of decisions made by the Commission as part of an appeal in which the Commission made findings of fact and conclusions of law following a hearing before a UI referee," and in which "the only identifying information . . . is [the] name and that of [the] business." Further, she notes that the Commission maintains an on-line database of selected decisions. It is her position that the Commission's refusal to permit access to the remaining decisions is arbitrary and legally unsupportable.
In supplemental correspondence directed to this office following commencement of Ms. Gray's appeal, Education Cabinet Assistant Counsel Tamela A. Biggs amplified on the Cabinet's position. Relying on KRS 61.878(1)(k) 2 and (l), KRS 341.190, KRS 151B.280(3), and 42 U.S.C. § 503, Ms. Biggs explained that these provisions "preclude the disclosure, except in very narrow parameters, of information contained in the files of the Commission and/or the Division of Unemployment Insurance. " She noted that KRS 341.190(3) "was amended in 1990 to render confidential not only information obtained from an employer or individual but records generated by the cabinet in administering the unemployment insurance benefits program," and that federal law tracks the language of the state confidentiality provisions. Moreover, Ms. Biggs advised, Kentucky's unemployment insurance program risks forfeiture of federal funding if the Cabinet fails to strictly adhere to these confidentiality requirements.
In response to Ms. Gray's argument that the publication of selected decisions on the Commission's website undermines its position that the remaining decisions are confidential, Ms. Biggs indicated that 787 KAR 1:110 Section 3(3)(a) and 787 KAR 1:110 Section 2(6) address this practice. She explained:
Precedent decisions are not merely decisions which have had identifying information removed. Precedent decisions, as published, are not the orders as issued by the Commission but a synopsis of same, including the issue, facts, reasons and concise decision of the Commission.
(Emphasis in original.) On behalf of the Education Cabinet's Division of Unemployment Insurance and the Kentucky Unemployment Insurance Commission, she asserted that the denial of Ms. Gray's request "was appropriate in light of federal and state law . . . ." Absent citation to specific legal authority that is contrary to the Cabinet's position, we defer to its interpretation of the referenced confidentiality provisions and affirm its denial of the request.
As noted, KRS 341.190(3) 3 was amended in 1990 and now provides:
Information obtained from an employing unit or individual and other records made by the cabinet in the administration of this chapter are confidential and shall not be published or be open for public inspection, except as provided below:
KRS 151B.280(3) states:
(b) Notwithstanding any other state statute or administrative regulation to the contrary, any information concerning individual clients or applicants in the possession of the Department for Employment Services may be shared with any authorized representative of any other state or local governmental agency, if the agency has a direct, tangible, and legitimate interest in the individual. The agency receiving the information shall assure the confidentiality of all information received. The Department for Employment Services may share information concerning a client or applicant with any private or quasi-private agency if:
It is these broadly worded confidentiality provisions that must be deemed applicable to the requested final decisions as "records made by the Cabinet in the administration of [Chapter 341]," and that preclude access except as otherwise specifically provided. This office's decision in OAG 83-405, holding that the Commission's final orders did not qualify for protection under KRS 61.878(1)(l) 5 and KRS 341.190's predecessor statute, 6 which did not encompass records made by the Cabinet, is no longer controlling. OAG 83-405 is therefore expressly overruled. However compelling Ms. Gray's need for these records, the referenced confidentiality provisions erect an impenetrable barrier to access which this office cannot breach.
Our analysis is not altered by virtue of the fact that the Cabinet implements its regulatory mandate in a manner that Ms. Gray finds objectionable. KRS 341.115(1) provides:
The secretary shall have the power and authority to adopt, amend or rescind such rules and regulations as he deems necessary or suitable for the proper administration of this chapter. The commission shall determine its own organization and methods of operation.
The secretary has done so at 787 KAR 1:110 Section 3(5)(a), which states:
Following the conclusion of a hearing the commission shall promptly set forth in writing its finding of the facts, it decision and its reasons therefore; provided, however, that if the appellant fails to appear and prosecute his appeal, the commission may summarily affirm the administrative determination or notice of income tax refund intercept from which the appeal was made. The decision shall be signed by the members of the commission who considered the appeal. At the discretion of the commission, its decision may be designated as representing precedent for future cases of similar circumstance. Decisions designated as precedent shall be binding on all lower levels of determination.
With reference to precedent decisions, 787 KAR 1:110 Section 2(6) states:
The Kentucky Unemployment Insurance Commission shall develop, distribute, and maintain a manual or digest containing all precedent decisions currently valid. The manual shall be available, on request, at a fee established by the commission.
Simply stated, issues relating to a public agency's implementation of its regulatory duties do not, in general, implicate the Open Records Act. Therefore, an open records appeal is not the appropriate forum in which to litigate these issues.
As we have previously observed, this office is not "empowered to rewrite statutes to suit [its] notion of sound public policy when the General Assembly has clearly and unambiguously established a different notion." Leadingham v. Smith, Ky. App., 56 S.W.3d 420, 429 (2001). The referenced state and federal provisions extend protection to the disputed records, and we are not prepared to invade the legislative prerogative. Accord, 04-ORD-060, p. 6. Moreover, in 98-ORD-78 we stated that this office will generally defer to the public agency in its interpretation of confidentiality provisions which are binding upon it. In that opinion, we deferred to the Revenue Cabinet in its interpretation of KRS 131.190(1) and affirmed its denial of a request to inspect maps, filed with tax returns, which contained information such as names of owners, boundaries, locations of seams, and amounts of coal severed and remaining on the property as a reserve. See, also e.g., 94-ORD-76 (deferring to Cabinet for Human Resources in its interpretation of KRS 620.050(4)); 97-ORD-33 (deferring to Corrections Cabinet in its interpretation of KRS 197.025); see also, 04-ORD-042, 04-ORD-152, and 04-ORD-252. It is the Education Cabinet's position that the records which Ms. Gray seeks are excluded from public inspection by KRS 341.190(3) and KRS 151B.280(3), incorporated into the Open Records Act by KRS 61.878(1)(l), and by 42 U.S.C. § 503, incorporated into the Open Records Act by KRS 61.878(1)(k). In the absence of any legal authority which is contrary to this position, we affirm the Cabinet's denial of Ms. Gray's request.
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:
Martha C. Gray212 Washington StreetFrankfort, KY 40601
John M. Rose, Branch ManagerKentucky Unemployment Insurance Commission275 East Main Street, 2WFrankfort, KY 40621
Tamela A. Biggs, Assistant CounselOffice of Legal ServicesEducation Cabinet Capital Plaza Tower, 3rd Floor500 Mero StreetFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(1)(l)authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 KRS 61.878(1)(k)authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation.
3 KRS 341.190(3) formerly made confidential "[a]ll letters, reports, communications, and other matters, written or oral, from employer or worker, to the secretary for human resources or any of his agents, representatives, or employees, or to the Commissioner, or to any board or official functioning under this chapter, which have been written, sent, or made in connection with the requirements and administration of this chapter . . . ." The provision now extends to "records made by the Cabinet in the administration of this chapter . . . ."
4 Ms. Biggs indicates that pursuant to Executive Order 2005-376 the Cabinet for Workforce Development was renamed the Education Cabinet.
5 Formerly, KRS 61.878(1)(j).
6 See note 3, above.