Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Fish & Wildlife Resources violated the Kentucky Open Records Act in denying the request of Denny Broyles to receive a copy of records that relates to him. Because KRS 61.878(3) overrides the exceptions codified at KRS 61.878(1)(a) - (j) and (m) - (n) 1, the Department erred in relying upon KRS 61.878(1)(a) as the basis for denying Mr. Broyles with copy of background investigation records that relate to him.
By letter dated December 12, 2006, Denny Broyles, Conservation Officer, Hickman County, Kentucky Department of Fish & Wildlife, submitted the following request to the Department for copies of:
all interview and selection documentation as referenced in: KDFWR POLICY 1.1; STEP 5: SELECTION PROCESS; Paragraph 1 as it relates to me, in the recent promotional process that took place for two (2) Conservation Officer Sergeant Positions in the 1st Law Enforcement District. In addition I am also requesting a copy of all background investigation documentation that the Law Enforcement Division retains on myself, (including, but not limited to, all documentation submitted by me during the background investigation process). As well as a copy of all training records maintained by the agency on this officer.
By letter dated December 19, 2006, Morgain M. Sprague, Staff Attorney, responded to Mr. Broyles' request on behalf of the Department, advising:
In response to your open records request, enclosed please find the following:
Your request for documentation pertaining to the background investigation process has been denied pursuant to KRS 61.878(1)(a) . . . .
As a result of the Department's response, Mr. Broyles initiated the instant appeal. In his letter of appeal, he advised that he had filed an employee grievance and subsequently an appeal to the KY Personnel Board against the agency on the promotional process for the two Conservation Officer Sergeant positions for which he was an Applicant/Eligible. He argued, in part:
. . . the records requested were provided to me either incomplete (Portions Blacked Out) or denied all together on the basis of KRS 61.878(1)(a) that it would constitute a clearly unwarranted invasion of personal privacy, however, the requested records and documents relate to me directly and it is my belief that they are being withheld unlawfully.
For the reasons that follow, we conclude that Mr. Broyles is entitled to copies of records that relate to him by virtue of KRS 61.878(3). The Department's denial of Mr. Broyles' request for a copy of background records that relates to him, on the basis of KRS 61.878(1)(a) , violated the Act.
As a public agency employee, Mr. Broyles has a greater right of access to records that relate to him than the public generally. KRS 61.878(3) provides:
No exemption in 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.
In analyzing this provision, the Attorney General has 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.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related.
95-ORD-97, p. 4.
By virtue of the rights granted by KRS 61.878(3), Mr. Broyles is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to [him]." Because he initiated the employee grievance and subsequent appeal, the concluding sentence in KRS 61.878(3), which authorizes an agency to withhold documents relating to an ongoing administrative investigation by the agency does not apply. 95-ORD-97.
Finally, the Department redacted portions of the records provided to Mr. Broyles. The Department's response does not set forth the exception(s) that authorize the redactions. KRS 61.880(1) requires that if the agency denies all or any portion of the request, it must "include a statement of the specific exception authorizing the withholding of the record," and briefly explain how the exception applies to the record withheld. It is incumbent on an agency to describe, in at least general terms, the nature of the information redacted and the statutory basis therefore. The failure of the Department to do so in its response was a violation of KRS 61.880(1). Unless the Department can set forth a statutory basis and explanation for the redactions, as required by KRS 61.880(1), it must provide Mr. Broyles with unredacted copies of the records.
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 KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3). In 2005, the General Assembly enacted two new exceptions to the Open Records Act. KRS 61.878(1)(m) creates an exception to the law for records implicating homeland security and KRS 61.878(1)(n) creates an exception for private donor records. It is, as yet, unclear what impact KRS 61.878(3) has on these exceptions.