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 Georgetown Police Department violated the Kentucky Open Records Act in denying the request of Tamara Semones to receive a copy "of the tape that was obtained by the Mayor[']s office of the conversation between Mrs. Christopher & myself." Because KRS 61.878(3) overrides the exceptions codified at KRS 61.878(1)(a) -(n), the GPD erred in relying upon KRS 61.878(1)(a) as the basis for providing Ms. Semones with a redacted transcript of the conversation rather than a copy of the audiotape.
In a timely written response, Chief William G. Reeves advised Ms. Semones that City Attorney Charlie Perkins had prepared a transcript of the original audiotape and, at "his direction," a "copy with the name redacted" was attached in response to her request. Two days later, on March 10, 2006, Ms. Semones resubmitted her request to receive a copy of the actual recording. Relying upon KRS 61.878(1)(a), Chief Reeves denied Ms. Semones' request because "the tape contains the names and apparent circumstances of other employees." 1 As observed by Chief Reeves, the "things said about the other employees would likely embarrass those employees and subject them to unjustified repercussions." In his view, the information concerning the employees "is not necessary for the public to assure the proper operation of a municipal office"; a transcript "was given in order to provide some protection for those other employees." According to Chief Reeves, the GPD has "no means of redacting the names of the other employees on the tape. "
Noting that her reason for requesting the tape is "to prove its inaccuracy," Ms. Semones initiated this appeal by letter dated March 16, 2006. Upon receiving notification of Ms. Semones' appeal from this office, City Attorney Charlie Perkins responded on behalf of the GPD. As explained by Mr. Perkins:
Both City officers and outside attorneys have heard the tape and found the transcript accurate. The City's letter to [Ms. Semones] outlines clearly the reason for the denial of her request and the substitution of the transcript.
The City has no interest in keeping this tape from the public. If the Attorney General's Office finds that release is advisable or required, the City will immediately make it public. We are also going to contact the other employees mentioned on the tape requesting their consent for the tape's release. If they consent, the tape will be released regardless of your decision.
In a letter directed to Mr. Perkins via facsimile on April 5, 2006, the undersigned asked Mr. Perkins to forward a copy of the audiotape to this office for in camera review pursuant to KRS 61.880(2)(c); Mr. Perkins did so immediately upon receipt of the request, and the undersigned has listened to the audiotape in its entirety. Because the audiotape relates to Ms. Semones, she is entitled to receive an unredacted copy by virtue of KRS 61.878(3) regardless of the content.
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 GPD 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). 2
By virtue of this provision, Ms. Semones is vested with a broader right of access to records relating to her than the general public has to the same records. Records that would otherwise be shielded from disclosure as preliminary drafts or notes pursuant to KRS 61.878(1)(i), or preliminary recommendations and memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, are accessible by Ms. Semones if those records relate to her. 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). None of the cited exceptions apply here. 3
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. See 05-ORD-118.
By its express terms, KRS 61.878(3) entitles a public agency employee such as Ms. Semones to inspect and copy any record "including preliminary and other supporting documentation that relates to [her]." 4 Accordingly, the GPD must provide Ms. Semones with an unredacted copy of the requested audiotape 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 Of particular relevance, Chief Reeves first advised Ms. Semones that the GPD had reviewed her request "seeking a copy of the tape of your phone conversation made from the electrical inspection office [at] approximately 3:30 p.m. on February 21, 2006." In her letter of appeal, Ms. Semones contends that she has "suffered retaliation, and harassment from [the supervisor of the employee against whom she filed complaints], the Chief Building Inspector." During a telephone conversation with the undersigned on April 11, 2006, Mr. Perkins confirmed that Ms. Semones is a county employee.
2 [ILLEGIBLE FOOTNOTE]
3 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.
4 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.