Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of William Lee Hart, II for copies of "all paperwork prepared in the prospective hiring of William Lee Hart" on the basis of KRS 61.878(1)(a). Because KRS 61.878(3) expressly applies to applicants for public employment such as Mr. Hart, and overrides the other exemptions of the Open Records Act codified at KRS 61.878(1), with limited exceptions that are not applicable here, the KSP violated the Open Records Act in denying Mr. Hart's request for records relating to him.
More specifically, Mr. Hart requested "the formal background investigation report, written by Detective Randy Combs, of Post 13 in Hazard, Ky.," and "all written paperwork associated with individuals who have made any recommendations [concerning] the decision not to proceed with the hiring" of Mr. Hart. In addition, Mr. Hart asked for "a contact name of someone in the Chain of Command at the [KSP] that would have" made the final decision regarding who was hired to fill the position of Police Telecommunicator I at the KSP headquarters in Frankfort, Kentucky, for which he applied. In a timely written response, Ricky Stiltner, KSP Official Custodian of Records, denied Mr. Hart's request on the basis of KRS 61.878(1)(a). As observed by Mr. Stiltner, this office has repeatedly held that "applications from unsuccessful applicants for state jobs are exempt from inspection under the Open Records Law pursuant to KRS 61.878(1)(a). See OAG 90-113; 95-ORD-38; 96-ORD-1; 97-ORD-72; and 00-ORD-90." According to Mr. Stiltner, the question is not whether Mr. Hart has a right to the record, "but whether the public has a right to the record." While this is generally true, KRS 61.878(3) is the exception to the rule.
By letter dated September 13, 2005, Mr. Hart initiated this appeal from the denial of his request. On appeal, Mr. Hart explains that he was offered the position of Police Telecommunicator I, and accepted the position, but the KSP rescinded the offer without explanation on September 1, 2005. In Mr. Hart's view, he is entitled to access the following records:
1. The complete background investigation report (conducted by Detective Randy Combs);
2. Any paperwork with my proper name included on the document, pertaining to my prospective employment;
3. The name of the official who had the final decision to approve or [disapprove] my hiring.
Because Mr. Hart is the person to whom the records relate, Mr. Hart disputes the assertion that a privacy issue exists. With the exception of any responsive examination materials, Mr. Hart's position is consistent with governing precedent. However, the final item of Mr. Hart's request is properly characterized as a request for information rather than a request for existing public records.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. 1 On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records") (emphasis added), validates this position. However, the analysis does not end there.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Because the statutory basis cited does not authorize the KSP to withhold any records containing the information requested, the KSP must provide Mr. Hart with access to potentially responsive records so that he can extract the information himself, assuming that the information is not provided through disclosure of the records at issue and that Mr. Hart wishes to exercise this option. 2
As correctly observed by the KSP, this office has consistently upheld denials by public agencies of requests by third persons for access to application materials submitted by unsuccessful applicants for public employment pursuant to KRS 61.878(1)(a). 03-ORD-084, p. 5. For example, in 02-ORD-221, 00-ORD-90, 97-ORD-72, 96-ORD-1, and 95-ORD-38, the Attorney General determined that the public agencies to which the requests were directed had properly withheld applications and resumes of unsuccessful applicants whose identities were unknown; the instant appeal is distinguishable in this crucial respect. Id. In OAG 90-113, this office expressly found that applications and resumes submitted by unsuccessful applicants for public employment are exempt from disclosure and copying under the Open Records Act on the basis of KRS 61.878(1)(a). See 00-ORD-90 (adopting the analysis of the balancing test in this context as set forth on pages 2 and 3 of 97-ORD-72). On the facts presented, the underlying rationale of these decisions-to prevent unsuccessful applicants from being embarrassed or otherwise harmed and avoid compromising the hiring and appointment process by encouraging lesser qualified "but thicker skinned" persons from competing, does not apply. To the contrary, KRS 61.878(3) mandates disclosure of the records requested.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Of particular relevance here, "when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the subsequent and more specific statute will control." Stogner, supra, at 835, citing Commonwealth v. Brasher, Ky. App., 842 S.W.2d 535, 536 (1992). Guided by the foregoing principles, this office respectfully disagrees with the position of the KSP as to the applicability of KRS 61.878(1)(a) in this context.
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). 3
By virtue of this provision, Mr. Hart is vested with a broader right of access to records relating to him than the right of the general public to the same records. Records that would otherwise be removed from application of the Open Records Act pursuant to one or more of the exceptions codified at KRS 61.878(1), are accessible by Mr. Hart. However, there are four exceptions to this broad right of access; a public agency employee (including an applicant for employment) is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k) ), or records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Nor is the employee entitled to inspect or copy "any examination or any documents relating to ongoing criminal or administrative investigations by an agency." KRS 61.878(3). With the possible exception of any responsive "examination," none of the cited exceptions apply here. 4
As repeatedly observed by the Attorney General:
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.
In applying this provision, the Attorney General has similarly recognized:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), 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. In short, the current version of KRS 61.878(3), the more specific of the two provisions implicated, overrides KRS 61.878(1)(a) on the facts presented. By its express terms, KRS 61.878(3) entitles an applicant for public employment such as Mr. Hart to inspect and copy any record "including preliminary and other supporting documentation that relates to him." 5 See 03-ORD-043 (holding that a former police officer was entitled to inspect "psychological records from when [she] was hired" because KRS 61.878(3) was not superceded by the specific confidentiality provision codified at KRS 15.400(3) since she was hired in 1992; no such provision is implicated here). Accordingly, the KSP must provide Mr. Hart with copies of any existing responsive records upon receiving "advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). To hold otherwise would contravene the legislative intent expressed at KRS 61.878(3) and governing precedent.
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 Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." Id., citing 96-ORD-223, p. 4 (citation omitted).
2 KRS 61.872 establishes guidelines for providing access to public records under the Open Records Act. In relevant part, KRS 61.872 provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In sum, the Open Records Act contemplates access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located, as is the case here, may demand that the agency provide him with copies of records, without inspecting those records, assuming that the requester precisely describes the records and the records are readily available within the agency. 02-ORD-26, p. 5; 97-ORD-16. See 02-ORD-26, p. 6, for discussion of the higher standard imposed upon requesters seeking to receive copies of records through the mail.
3 [ILLEGIBLE FOOTNOTE]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
4 In 02-ORD-168, the Attorney General construed thisexclusionary language as follows:
While we therefore cannot affirm the [public agency's] denial of [the requester's] request on the basis of KRS 61.878(1)(g), we find that the exclusionary language in KRS 61.878(3) supports its position. Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing," and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc., of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto that are the subject of this appeal. We conclude that [the requester's] broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination. Accord, 98-ORD-137 (Kentucky State Police properly denied trooper's request for sergeant's promotional examination on the basis of KRS 61.878(3)).
Id., pp. 8-9.
5 In 01-ORD-126, the Attorney General upheld the line of decisions holding thatKRS 61.878(3) logically extends to former public agency employees. Adopting the analysis contained in 97-ORD-87, this office observed:
By its express terms KRS 61.878(3) extends to public agency employees, applicants for employment, and eligibles on a register. Although the provision does not contain a specific reference to former employees, we believe that its expansive wording, coupled with the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compel this result. The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to [e]nsure that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statutes, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law."
It is simply inconceivable that the legislature intended to endow applicants for public employment [with the necessary implication being that applicants do have a right to access records relating to them] with a broader right of access to records relating to them than former public employees. Former public employees . . . are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for employment. Any other reading of KRS 61.878(3) is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole.
01-ORD-26, pp. 3-4 (emphasis added); see also 00-ORD-159; 97-ORD-161; 97-ORD-140. In so holding, the Attorney General explicitly recognized that KRS 61.878(3) applies to applicants for employment.