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 Department of Fish & Wildlife Resources violated the Kentucky Open Records Act in partially denying the request of Billy D. Wilson to inspect "Any and all documents" relating to his dismissal from the KDFWR; Mr. Wilson also requested the "specific names of all persons who acted in this action against" him. Because the single document withheld from inspection was created during the course of an ongoing administrative investigation by the KDFWR, the KDFWR properly relied upon KRS 61.878(3) as the basis for denying access. In failing to issue a written response within three business days, the KDFWR violated KRS 61.880(1).
In a letter dated August 11, 2006, Cara Jarrell, former Assistant Counsel, Commerce Cabinet, responded to Mr. Wilson's request dated June 28, 2006, on behalf of the KDFWR. In relevant part, Ms. Jarrell explained:
The KDFWR has produced four documents responsive to your request. Please find enclosed a P1 indicating your dismissal in addition to a letter to you from Darin Moore dated June 19, 2006, a letter to Dr. Ruth Bunch dated July 10, 2006, and a letter to you from Tiffany Yeast dated August 7, 2006. Additionally, the KDFWR has another document in its possession that is exempted from disclosure under KRS 61.878(3) which states "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." This document was created as part of an ongoing administrative investigation by the KDFWR.
In addition to requesting any and all documents relating to the specific reasons for your dismissal from KDFWR, you requested specific names of all persons who acted in the action against you. A document with the list of names of all persons who acted in the action against you does not exist, and, therefore, cannot be produced for your request. 1
By letter dated November 9, 2006, Mr. Wilson initiated this appeal from the partial denial of his request. 2 Upon receiving notification of Mr. Wilson's appeal from this office, Morgain Sprague, Staff Attorney, responded on behalf of the KDFWR, citing KRS 61.878(3) and reiterating that the document in question "was created as part of an ongoing administrative investigation by the [KDFWR] and is therefore exempt from the Kentucky Open Records Act. " In short, the initial response of the KDFWR was procedurally deficient but substantively correct.
As a public agency, the KDFWR is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. 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-much less amount to [] substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106. Although Mr. Wilson apparently sent his request on June 28, 2006, the KDFWR did not respond until August 11, 2006, well beyond the designated time frame; the KDFWR did not initially offer any explanation for the delay nor has the KDFWR addressed this issue on appeal.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the KDFWR invoked here. 02-ORD-165, p. 3.
As consistently recognized by the Attorney General, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Public agencies such as the KDFWR may not elect a course of inaction. Failing to respond in a timely fashion as the KDFWR initially did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the KDFWR should review this provision before responding to requests submitted pursuant to the Open Records Act.
Turning to the substantive issue presented, this office finds that KRS 61.878(3) authorizes the KDFWR to withhold the document in question. 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 to 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).
Resolution of the instant appeal turns upon the language of KRS 61.878(3), which 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 and records 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 copy any examination or 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 (Emphasis added); 98-ORD-114. Because the KDFWR has not invoked KRS 61.878(1)(k) or KRS 61.878(1)(l), nor does either provision apply in this context, the KDFWR would be required to disclose all of the records in the absence of an ongoing investigation.
As a former public agency employee, 3 Mr. Wilson is endowed with a broader right of access to records relating to him than the general public has 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. Wilson if those records relate to him. 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." 4 KRS 61.878(3). See 05-ORD-118; 03-ORD-015; 00-ORD-111; 99-ORD-3; 98-ORD-81; 97-ORD-161.
To summarize, Mr. Wilson is a (former) public agency employee within the meaning of KRS 61.878(3); Mr. Wilson is therefore entitled to review any record which relates to him except any examination or documents relating to ongoing criminal or administrative investigations by the KDFWR. Because the single record to which Mr. Wilson was denied access concerns an ongoing administrative investigation being conducted by the KDFWR, Mr. Wilson's request was properly denied. Although the right of access granted to public agency employees by KRS 61.878(3) overrides the remaining exceptions codified at KRS 61.878(1) when the employee requests access to records relating to him, the concluding sentence of KRS 61.878(3) suspends this right while the employee is the subject of an ongoing investigation. 98-ORD-114; 93-ORD-74; 93-ORD-37. Such is the case here.
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.
SPC/4, Billy D. Wilson, 2401Motor Pool SectionTASK FORCE AVDRAD 06-08APO, AE 09366
Cara JarrellAssistant CounselCommerce CabinetKentucky Department of Fish & Wildlife Resources # 1 Sportsman's LaneFrankfort, KY 40601
Morgain SpragueStaff AttorneyCommerce CabinetKentucky Department of Fish & Wildlife Resources# 1 Sportsman's LaneFrankfort, KY 40601
Footnotes
Footnotes
1 As long recognized by the Attorney General, a public agency cannot produce for inspection or copying records which do not exist; a public agency discharges its duty under the Open Records Act by affirmatively indicating that responsive records do not exist in a timely written response. See 06-ORD-069, pp. 4-6.
2 Because the KDFWR has provided Mr. Wilson with a copy of those existing records which are responsive to his request with one exception, any issues concerning those records are moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes that Mr. Wilson has received a copy of all existing records which are responsive to his request except for the specified document generated during the related investigation; this office must therefore decline to issue a decision concerning those records. Our analysis focuses exclusively on whether the KDFWR properly invoked KRS 61.878(3) in denying access.
3 As noted, KRS 61.878(3) expressly applies to public agency employees, applicants for public employment, and eligibles on a register. Although the provision does not contain a specific reference to former public 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." 97-ORD-87, p. 3. As recognized by the Attorney General, the "obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to [ensure] 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." Id. Any other interpretation of this provision "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law." Frankfort Publishing Company, Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), citing Kentucky Tax Commission v. Sandman, 300 Ky. 423, 189 S.W.2d 407 (1945); 97-ORD-87. "It is simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. " 97-ORD-87, p. 3.
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.