Request By:
Gregory Valentine, # 163775Thomas B. Stephens
Executive Director
Office of Legal Services
200 Fair Oaks Lane, 5th Floor
Frankfort, KY 40601
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 Personnel Cabinet violated the Kentucky Open Records Act in denying the request of Gregory Valentine for "All records (excepting those exempted by statute) of Danna M. Todd." Although the social security number, home address and telephone number, marital status, date of birth, medical records, evaluations, and those documents unrelated to job qualifications or performance may properly be withheld on the basis of KRS 61.878(1)(a), which should alleviate the concerns of the Cabinet and sufficiently protect her privacy, the personnel file of a public employee such as Ms. Todd is otherwise subject to inspection; a blanket denial such as the one which prompted this appeal violates the Open Records Act. More specifically, the Cabinet erred in relying upon KRS 197.025 inasmuch as that provision expressly applies to the Department of Corrections; to hold otherwise would necessarily yield the absurd result of the Commissioner being the arbiter of inmate access to records maintained by every public agency in direct contravention of the legislative intent. Because Ms. Todd's personnel file contains both excepted and nonexcepted material, the Cabinet is required to identify and redact any excepted material, articulate in writing the statutory basis for withholding same per KRS 61.878(4), and make the nonexcepted material available to Mr. Valentine.
In a letter directed to Mr. Valentine on July 6, 2007, Thomas B. Stephens, Executive Director, Office of Legal Services, responded to Mr. Valentine's request dated June 25, 2007, on behalf of the Cabinet. Citing KRS 197.025(2), Mr. Stephens correctly noted that "the Department of Corrections is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual." (Emphasis added). Explaining to Mr. Valentine that KRS 197.025(2) applies to his request "as an enactment of the General Assembly" per KRS 61.878(1)(l), 1 Mr. Stephens denied Mr. Valentine's request in its entirety because the records being sought do not contain a specific reference to him. 2 By letter dated July 10, 2007, Mr. Valentine initiated this appeal "because the statute cited pertains only to requests directed to the Department of Corrections." In his view, the Personnel Cabinet "cannot avail itself of an exemption enacted for the benefit of an unrelated agency."
Upon receiving notification of Mr. Valentine's appeal from this office, Mr. Stephens supplemented his response on behalf of the Cabinet. Noting that Mr. Valentine is currently an inmate at Little Sandy Correctional Complex and Ms. Todd is an Assistant Commonwealth's Attorney for the 48th Judicial Circuit, Mr. Stephens argues that the personnel file of a prosecutor, when requested by an inmate, "should be highly regarded and protected" which is "precisely what KRS 197.025 intends to accomplish." Correctly arguing that "KRS 197.025 provides restrictions that the Department of Corrections may rely upon in denying requests[,]" Mr. Stephens belatedly invokes KRS 197.025(1), pursuant to which "'no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person .' (emphasis added)"
As explained by Mr. Stephens, the Personnel Cabinet "is responsible for maintaining the official personnel file of all state employees. Thus, the Personnel Cabinet is frequently called upon to provide official personnel files of employees outside of the Personnel Cabinet." When the Cabinet receives a request for documents that "statutorily cannot be provided by another agency," the Cabinet is "reasonable in relying upon the same statute" in denying the request. "After consulting with legal counsel for the DOC," the Cabinet denied Mr. Valentine's request. Since the Cabinet is the "Custodian of the official personnel files," the Cabinet "acts jointly with all executive branch agencies."
Quoting an excerpt found in prior decisions of this office, Mr. Stephens correctly observes that the Attorney General has repeatedly upheld the basic principle that an "inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " In this case, "an inmate is requesting the personnel file of a prosecuting attorney. An inmate could not request personnel files of jailers, wardens, and other employees of the jail, unless that inmate was specifically referenced within the documents. KRS 197.025(2)." Just as that provision is "designed to maintain the safety and security of the prison and its employees[,]" an inmate should not be permitted access to the personnel file of a prosecuting attorney in the Cabinet's view. When the alternative is considered (inmates being able to access the personnel files of prosecuting attorneys), the Cabinet's denial was "reasonable." According to Mr. Stephens, "the statutory protections afforded in KRS 197.025 should extend to prosecuting attorneys as well." Citing 04-ORD-035, Mr. Stephens asserts, in conclusion, that even if the Attorney General determines that the Personnel Cabinet "did not perfectly comply with the 'adequate reason' requirement" of KRS 61.880(1) in responding to Mr. Valentine, "the requested documents should not be made available, as there was no substantive error in the denial." 3 Based upon the unambiguous language of KRS 197.025, this office respectfully disagrees.
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). Guided by the foregoing principles, the legislative statement of policy found at KRS 61.871, declaring that the exceptions codified at KRS 61.878 "or otherwise provided by law shall be strictly construed," and the Kentucky Supreme Court's pronouncement in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 327 (1992) that the Open Records Act "exhibits a general bias favoring disclosure, " this office declines to uphold the Personnel Cabinet's interpretation of KRS 197.025.
Chapter 197, entitled simply "PENITENTIARIES," governs the operation of such facilities located within the Commonwealth of Kentucky. More specifically, for purposes of this chapter "Penitentiaries" includes:
. . . the state penal institutions for males at Eddyville, LaGrange, the Green River Correctional Complex, the Luther Luckett Correctional Complex, the Kentucky Correctional Institute for Women, the Northpoint Training Center, the Roederer Correctional Complex, the Eastern Kentucky Correctional Complex, the Western Kentucky Correctional Complex, Frankfort Career Development Center, Blackburn Correctional Complex, and Bell County Forestry Camp, together with the branches thereof, any private prison as provided by KRS 197.500, and any other similar institutions hereafter established[.]
KRS 197.010(5). Noticeably absent from this list is any reference to either the Personnel Cabinet or any other public agency which is not a correctional facility under the jurisdiction of the Department of Corrections. Of particular significance, KRS 197.025(1) and 197.025(2) refer to "the commissioner of the department or his designee" 4 and "the department," respectively; KRS 197.010(1) defines "Cabinet" as the "Justice Cabinet" and KRS 197.010(3) provides that "'Department' means Department of Corrections." In other words, the General Assembly expressly limited the scope of these statutory exceptions to the Department of Corrections and those facilities under its jurisdiction.
"It is a cardinal rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned." Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957). See Commonwealth of Kentucky Board of Claims v. Harris, Ky., 59 S.W.3d 896 (2001). Contrary to the Personnel Cabinet's assertion, Chapter 197 does not apply on the facts presented. Had the General Assembly intended for Chapter 197 generally, or KRS 197.025(1) 5 and (2) 6 specifically, to encompass records maintained by the Personnel Cabinet, it would have included language to that effect. Absent such language, no such intent can be presumed. It is "neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002)(citation omitted).
Because the unambiguous language of KRS 197.025(1) and (2) directly refutes the interpretation proposed by the Personnel Cabinet, this office finds that its reliance on those provisions was entirely misplaced. When viewed in conjunction, the general principles of statutory construction outlined above, the mandate of strict construction codified at KRS 61.871, and the unambiguous terms of KRS 197.025(1) and (2) demand this result. "If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court." OAG 80-54, p. 3. That being said, the Personnel Cabinet is permitted to redact any information or withhold any records the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a) before providing Ms. Todd's file in accordance with governing precedents.
In 03-ORD-012, 7 this office held that the Berea Independent School District had improperly denied a request for the complete personnel records of named employees, a request which necessarily encompasses the records in dispute, on the basis of KRS 61.878(1)(a). In so doing, the Attorney General reasoned that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," and, therefore, the agency must "determine what is and is not subject to Open Records." Id., p. 7. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. As observed by the Attorney General, there is ample authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example, OAG 78-133, OAG 91-20, OAG 92-34, 95-ORD-123, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275, OAG 87-37, OAG 90-60, OAG 91-81, 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. 8 To summarize, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and[,] therefore[,] the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090.
As evidenced by the foregoing authorities, the Personnel Cabinet violated the Open Records Act in refusing to provide Mr. Valentine with a copy of Ms. Todd's personnel file on the basis of KRS 197.025. To hold otherwise would result in the unintended consequence of the Commissioner being the arbiter of inmate access to records maintained by every public agency. In construing legislative enactments, the Attorney General presumes "that the legislature did not intend an absurd result. " Commonwealth of Kentucky, Central State Hospital v. Gray, 880 S.W.2d 557, 559 (1994). Because that file contains both excepted and nonexcepted material, the Cabinet may redact any excepted material and make the nonexcepted material available for inspection or copying after the Cabinet identifies the material being withheld and then articulates in writing the statutory basis for withholding the excepted information per KRS 61.878(4) 9 and KRS 61.880(1). To clarify, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 03-ORD-128, p. 5, citing OAG 81-198, p. 4 (emphasis added).
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 Among those records excluded from application of theOpen Records Act are those identified at KRS 61.878(l) as:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 KRS 197.025(2) provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
(Emphasis added).
3 In relevant part,KRS 61.880(1) provides:
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 this mandatory provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky., 926 S.W.2d 856, 858 (1996)(Emphasis added). As evidenced by the italicized language, the agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. Edmondson establishes that a public agency has the burden of justifying its denial of a request to access public records by referencing the appropriate exception and briefly explaining how that exception applies to the particular documents withheld under this provision. It has long been the position of this office "that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882 to justify the nondisclosure of a public record." 02-ORD-152, p. 5 (Citations omitted). At this juncture, we remind the Cabinet that a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id.
4 While "designee" is not defined, the logical inference is that designee refers to employees of the Department acting on the Commissioner's behalf and those facilities, whether state or local, under the jurisdiction of the Department when the statutory scheme is viewed as a whole. See 03-ORD-212; 02-ORD-82; 00-ORD-182.
5 See 04-ORD-017 for the standard analysis relative to KRS 197.025(1). "By enacting KRS 197.025(1), 'the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security.' 96-ORD-209, p. 3; 03-ORD-190, supra." 04-ORD-017, p. 4. In construing the expansive language of this provision, "the Attorney General has recognized that KRS 197.025(1) 'vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records.' 96-ORD-179, p. 3; 03-ORD-190, supra." Id., pp. 4-5. "Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public based on KRS 197.025(1) . . . ." Id., p. 5 (emphasis added).
6 See 04-ORD-076 for the analysis employed by this office in determining whether KRS 197.025(2) has properly been invoked by a jail or facility under the jurisdiction of the Department. In 2002, the General Assembly further narrowed the scope of public records available to inmates "by stipulating that correctional facilities and jails must disclose only those records containing a 'specific reference' to the requesting inmate. " Id., p. 4 (emphasis added).
7 At issue in 03-ORD-213 was whether the Laurel County Sheriff's Department had violated the Open Records Act in its disposition of a request for personnel records, including disciplinary records concerning specified officers and records generated by an internal investigation regarding a named individual. In concluding that the Department had committed a substantive violation of the Act, this office emphasized that the request was for the entire personnel files of the named officers rather than just disciplinary records contained in those files. 03-ORD-213, p. 2. Relying upon 03-ORD-012, the Attorney General disagreed with the Department's characterization of the remaining information as "personal." Equally without merit is the blanket denial which prompted the instant appeal.
8 A public employee's date of birth may also be withheld per KRS 61.878(1)(a) as a personal detail generally accepted by society as carrying an expectation of privacy that outweighs the minimal public interest in disclosure. See 07-ORD-141; 04-ORD-143. Likewise, the Attorney General has recognized that home telephone numbers are protected under KRS 61.878(1)(a). See 00-ORD-97.
9 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for inspection. "