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 Todd County Board of Education violated the Kentucky Open Records Act in denying the request submitted by Melony Leazer of the Todd County Standard for "a copy of all employment, discipline and termination records for former Todd County Middle School Principal J. Kenneth Killebrew[,]" as well as a copy of "any legal settlement or terms of resolution reached between the [Board] and Mr. Killebrew." In accordance with a line of decisions issued by the Attorney General, this office concludes that Mr. Killebrew's personnel records are not removed, in their entirety, from application of the Open Records Act by operation of KRS 61.878(1)(a); accordingly, the Board must separate the excepted material and make the nonexcepted material available for inspection as mandated by KRS 61.878(4). To satisfy the burden of proof imposed by KRS 61.880(2)(c), the Board is also required to provide a written response identifying any records which are responsive, but are not being disclosed, citing the applicable statutory exception, and briefly explaining how it applies. With regard to whether a settlement agreement can properly be withheld under KRS 61.878(1)(a), this office again finds that
Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469 (1997), is controlling. More specifically, a confidentiality clause in a "Final Order/ Agreed Order of Dismissal" entered during an administrative proceeding, as opposed to a Court Order of Confidentiality, does not supersede the Open Records Act, under which settlements are open for inspection, notwithstanding any confidentiality clauses; holding otherwise would contravene KRS 13B.090(3).
By letter directed to Bruce Gray, Interim Superintendent, via electronic mail 1 on March 12, 2007 (received on March 13), Ms. Leazer submitted the aforementioned request. In a letter dated March 16, 2007, Harold M. Johns, responded on behalf of the Board; attached to his letter is a copy of a Final Order/ Agreed Order of Dismissal "entered in a proceeding styled Commonwealth of Kentucky Education, Arts and Humanities Cabinet Department of Education Agency Case Number 61-21 Administrative Action Number 06-EAHC-0359 Kenneth Killebrew, Petitioner vs. Todd County Schools, Respondent." In denying Ms. Leazer's request, Mr. Johns explained the Board's position as follows:
As you will note, pursuant to that Order, "The terms of the [d]ismissal and [r]esolution are placed under seal. The parties are strictly [o]rdered to adhere to the confidentiality provisions contained in the [r]esolution [a]greement and release to which they have agreed."
As you are undoubtedly aware, a public agency may refuse to permit an inspection of public records if the public records have been placed under a Court Order of confidentiality; entry of such a Court Order removes the public records from the application of the Open Records Act. See, 94-ORD-138, 93-ORD-93, OAGs 91-121, 89-22.
The other part of your request asks for what appears to amount to Mr. Killebrew's personnel file. Pursuant to KRS 61.878(1)(a) records of that nature are not being furnished. These would appear to me to be public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Additionally, such a disclosure would violate the provisions of the Final Order attached hereto and referred to above.
On March 19, 2007, Ms. Leazer initiated this appeal challenging the denial of her request. In her view, the settlement is an open record for two reasons. "First, the [Board] is a public agency as defined under KRS 61.870(1). Second, the agreement was not entered in a court of law." In addition, Ms. Leazer contends that Mr. Killebrew's personnel file is not protected by KRS 61.878(1)(a), noting this office has recognized "reprimands to employees regarding job-related misconduct and settlement documents in an employee's file as among those" records which are open for inspection. Upon receiving notification of Ms. Leazer's appeal from this office, Mr. Johns reiterated his previous argument, noting that in OAG 89-22 and subsequent decisions, this office "recognizes that a public agency bound by a Court Order restricting release of records might be found in contempt of Court and subject to civil liability if the agency or its employees released records within the [purview] of that Order." In support of this position, Mr. Johns cites 05-ORD-66 "and other decisions cited therein including OAG 91-121; OAG 92-119; 94-ORD-139. These decisions hold, generally, that the Open Records Act does not supersede an Order of Confidentiality entered by [a] court of competent jurisdiction. " According to Mr. Johns, the Final Order of the administrative agency "should be afforded and has the same effect as a final order of a 'court of competent jurisdiction. '" Based upon the following authorities, this office respectfully disagrees. 2
Our duty in resolving the issue presented "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. As with any decision involving statutory interpretation, 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). Our analysis is necessarily guided by these fundamental principles, as well as the statement of legislative policy codified at KRS 61.871, "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]"
With regard to whether the employment records or "personnel file" of a public employee are open for inspection by the public, the analysis contained in 04-ORD-041 (pp. 3-6), a copy of which is attached hereto and incorporated by reference, is equally applicable here. See 06-ORD-036; 05-ORD-064. Although Mr. Killebrew's social security number, home address, medical records, evaluations, and other documents which are unrelated to his job performance may properly be withheld on the basis of KRS 61.878(1)(a), a blanket denial such as the one which prompted this appeal violates the Open Records Act. Because the file at issue contains both excepted and nonexcepted material, the Board is required to redact any excepted material and make the nonexcepted material available for inspection after articulating, in writing, the statutory basis for withholding the excepted information/records per KRS 61.878(4) and KRS 61.880(1). Given this determination, the remaining question is whether the Board properly denied Ms. Leazer's request for "a copy of any legal settlement or terms of resolution reached between the Todd County Board of Education and Mr. Killebrew."
Administrative hearings are governed by Chapter 13B of the Kentucky Revised Statutes. Of particular significance in this context, KRS 13B.090(3), in relevant part, specifies:
Conditions for examining and copying agency records, fees to be charged, and other matters pertaining to access to these records shall be governed by KRS 61.870 to 61.884 [the Open Records Act] .
In light of this legislative mandate, prior decisions of the Attorney General applying KRS 61.878(1)(a) in this context determine the result. With regard to accessibility of settlement agreements under which a public employee is separated from public employment, this office has necessarily adopted the position of the
Kentucky Supreme Court in Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 473 (1997):
In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation between [a former public employee] and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection-in contrast with agreements containing the kind of matters protected by [other privileges analyzed by the Court].
See 00-ORD-5; 99-ORD-39; 98-ORD-24.
In our view, 04-ORD-031 and 04-ORD-169, both of which are premised upon this binding precedent, are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Regardless of whether a public employee "is separated from public employment voluntarily, through resignation, or by agreement of the parties, through settlement, the public is entitled to inspect records documenting same." 04-ORD-031, p. 9 (citation omitted). To hold otherwise would contravene both governing case law and prior decisions of the Attorney General.
Melony Leazer
Harold M. JohnsP.O. Box 746Elkton, KY 42220-0746
Footnotes
Footnotes
1 Although this method is of submitting a request does not comply with KRS 61.872(2), a public agency can waive this requirement by responding without objection as the Board did here.
2 Our holding today does not undermine the validity of the decisions upon which the Board relies concerning the deference to which a court order is entitled.