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 Lexington-Fayette Urban County Human Rights Commission violated the Kentucky Open Records Act in partially denying the request submitted by Arthur T. Crosby, Executive Director of the Lexington Fair Housing Council, as the legal representative of Amber Young, for "all documentation regarding the investigation of [Young v. Settles HUD No. 04-06-0390, HRC No. 01-06-2232], including copies of all documents, notes, or correspondence. " Insofar as the Commission initially failed to provide a brief explanation of how the cited statutory exceptions apply on the facts presented, the Commission violated KRS 61.880(1). Because the specific and mandatory language of KRS 344.615(2) requires the Commission to provide the "aggrieved person [Ms. Young] and the respondent, at any time, upon request information derived from the investigation and any final investigative report relating to that investigation," this office concludes that the Commission violated the Act in partially denying Mr. Crosby's request. Although KRS 344.615(1) prohibits the Commission from releasing any information generated "in the course of a conciliation of a discriminatory housing practice" to the general public without the written consent of the respondent, KRS 344.615(2) mandates disclosure of such information to either party upon request.
By letter dated September 20, 2007, William D. Wharton, Executive Director of the Commission, advised Mr. Crosby that his request was granted except for the "following document[s] and/or memoranda, which have been removed pursuant to KRS 61.878(1)(i)(j)(k)" and KRS 344.250(6):
1. Investigative Log - 1 typed/ handwritten page - by R. Sexton
2. Investigative Plan - 3 typed pages - by R. Sexton
3. System Housing Data Log - 1 typed/ handwritten page - by R. Sexton
4. HUD Benefit Analysis Sheet - 1 typed page - by R. Sexton
5. Case Chronology - 1 typed page - by R. Sexton
6. Evidentiary Checklist - 1 typed page - by R. Sexton
7. Letter to B. Settles w/ attachments (4/5/06) - 4 typed pages - by R. Sexton
8. Fax to M.J. Barnett - HUD (4/5/06) - 1 typed/ handwritten page - by R. Sexton
9. Property Search Printout (4/5/06) - 3 typed pages
10. E-mail to G. Tingle, Mediation Center (4/26/06) - 1 typed page - by T. Reed
11. Withdrawal documents Fax to Mediation Center (5/17/06) - 3 typed pages - by T. Reed
12. Log Control Sheet - 1 typed page - by R. Sexton
Arguing that "the more specific language contained in KRS 344.615(2) (and corresponding requirements under 42 U.S.C. 3610(d)(2) and 24 CFR 103.230(c)) authorizing disclosure to a party should control in this case," Mr. Crosby initiated this appeal from the Commission's partial denial of his request.
Upon receiving notification of Mr. Crosby's appeal from this office, Edward E. Dove, Commission Attorney, supplemented Mr. Wharton's response. According to Mr. Dove, the events which culminated in this appeal can be summarized as follows:
Ms. Young filed her charge of housing discrimination with the Commission on April 14, 2006. The Commission, as [is its] standard practice, commenced an investigation. The Commission was of the opinion that the case could be mediated at the Mediation Center. The parties were successful in resolving the issue. The parties entered into a Mediation Agreement. The Commission was at no time a party to the mediated agreement. On May 22, 2006, the Commission mailed noticed to the parties that the case was satisfactorily resolved and closed in the Commission office. On September 14, 2007, Mr. Crosby filed [an] open records request with the Commission. The Commission timely responded to the request and granted the request with [the] exception of twelve items. . . . On September 28, 2007, Mr. Crosby filed the appeal.
Citing KRS 61.878(1)(i) and (j), Mr. Dove submits that the records withheld from disclosure "are internal and preliminary memoranda not subject to disclosure. There was no final agency decision based on the withheld document[s] simply because the parties resolved the issues through mediation."
In addressing Mr. Crosby's argument relative to KRS 344.615(2), the Commission asserts that a "close reading" of the statute reveals that "the party has a right to inspect the records following completion of a Commission investigation or any final investigative report relating to the investigation." According to the Commission, "Mr. Crosby has in his possession all records that are in compliance with the statute. Mr. Crosby does not state what [sic] if any records the Commission is withholding that would comply with" KRS 344.615(2). Accordingly, his complaint "is a fishing expedition." In Mr. Dove's view, those records "pertaining to the Commission's decision to find the case 'satisfactorily resolved' have been disclosed to Ms. Young. The remaining documents are internal and preliminary documents not subject to disclosure. " 1 Given the intent of the General Assembly, as expressed by the specific and mandatory language of KRS 344.615(2), this office must respectfully disagree with the Commission's application of KRS 344.615(2) based on the limited evidence of record.
As a public agency, the Commission is obligated to comply with 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, generally speaking. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted under the Open Records Act. 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 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).
Although the Commission initially cited KRS 61.878(1)(i), (1)(j), (1)(k), 2 and KRS 344.250(6) in support of the position that Mr. Crosby has been provided with all of the records to which he is entitled under the Open Records Act, the Commission failed to provide any explanation of how those exceptions apply to the records withheld as expressly required by KRS 61.880(1). 3 To this extent, the initial response of the Commission is procedurally deficient. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), the Commission must not only cite the applicable exceptions, but provide a brief explanation of how those exceptions apply to the records, or portions of thereof, withheld. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As recognized by the Attorney General in 97-ORD-41:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
Id., p. 6; 04-ORD-106. To its credit, the Commission identified the items being withheld; however, the cursory reference to the exceptions upon which it relied in so doing lacks the specificity envisioned by KRS 61.880(1). As long recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-080; 02-ORD-187. To avoid future violations, the Commission should adhere to these guidelines in responding to requests under the Open Records Act. 4
Turning to the substantive issue presented, Mr. Crosby's argument relative to application of KRS 344.615(2) is persuasive in our view. As a threshold matter, this office notes that the Lexington-Fayette Urban County Human Rights Commission was organized in accordance with KRS 344.310; accordingly, the provisions of KRS Chapter 344 apply here. Citing Crutcher v. Commonwealth of Kentucky, 495 F.Supp. 603, 605 (E.D. Ky. 1980), the Attorney General has recognized that when a matter is within its jurisdiction, "a local human rights commission has the same power and authority over that matter as the State Commission on Human Rights has over matters it is authorized to handle." OAG 85-5, p. 1 (modified on other grounds in OAG 88-55). More specifically, KRS Chapter 344 provides that a local city-county human rights commission "is authorized to provide for the execution of the policies set forth in the state's Civil Rights Act and, thus, the provisions of KRS Chapter 344 also apply to city-county human rights commissions." Id., p. 2.
Resolution of the instant appeal turns on the specific and mandatory language of KRS 344.615, pursuant to which:
(1) Nothing said or done in the course of conciliation of a discriminatory housing practice may be made public or used as evidence in a subsequent proceeding under this chapter without the written consent of the respondent.
(2) Notwithstanding subsection (1) of this section, the commission shall make available to the aggrieved person and the respondent, at any time, upon request following completion of the commission's investigation of a discriminatory housing practice, information derived from the investigation and any final investigative report relating to that investigation.
(Emphasis added). Although prior decisions involving the Kentucky Human Rights Commission and local commissions were resolved on the basis of KRS 344.250(6), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), or KRS 61.878(1)(i) and (j), or both, all of which the Commission relies upon here, this appeal presents an issue of first impression - whether KRS 344.615(2) controls over these general confidentiality provisions in the context of a request for information and records generated in the course of a discriminatory housing practice investigation and, if so, whether the Commission has complied with this mandatory disclosure provision.
When called upon to render a decision involving statutory interpretation, the duty of this office "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 two statutes concern the same or similar subject matter, the specific shall prevail over the general. Stogner, supra, at 835; 02-ORD-19. The General Assembly "is presumed to be aware of the existing law at the time of enactment of a later statute." Id. Accordingly, "if two statutes involving the same subject matter are in irreconcilable conflict, the later statute controls." DeStock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952, 958 (1999). Said another way, "when a later-enacted and more specific statute [KRS 344.615 (2), enacted in 1992] conflicts with an earlier-enacted and more general statute [KRS 344.250(6), enacted in 1966], the subsequent and specific statute will control." Stogner, supra, at 835, citing Commonwealth v. Brasher, Ky. App., 842 S.W.2d 535, 536 (1992). When viewed in light of the foregoing principles, as well as the legislative statement of policy codified at KRS 61.871, declaring "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," the express language of KRS 344.615(2) speaks for itself.
In a line of decisions construing KRS 344.250(6), which date back to the mid-eighties, this office has found that "what is available for public inspection is dependent upon the level at which the proceeding has progressed." OAG 85-5, p. 3. Given the expansive language of KRS 344.250(6), "this office has recognized on several occasions that the fact that the person seeking access to a record or records obtained by the Commission in discharging its duties under Chapter 344 is the person who originally filed the complaint does not alter the analysis or compel a different result." 00-ORD-209, p. 6. As further observed by the Attorney General, the purpose "of achieving candor in the investigation and conciliation process which underlies the confidentiality provision, the legislature has concluded, must be promoted regardless of [the identities of the complainant and respondent]. . . ." Id. This conclusion should be construed "as a legislative recognition that the greater public good is served by promoting the conciliation process through frankness and candor, and extending assurances of confidentiality toward this end." Id.
In a similar vein, KRS 344.615(1) expressly prohibits disclosure of anything "said or done" in the course of conciliation of a discriminatory housing practice (as opposed to employment discrimination, gender discrimination, etc.), such as the one which prompted this appeal, without the written consent of the respondent; however, by enacting KRS 344.615(2) the General Assembly expressed with equal clarity the intention to create a limited exception to this general rule of confidentiality when the party requesting information is the aggrieved person or the respondent in such a proceeding. Here, Mr. Crosby has requested the information in his capacity as the legal representative for Amber Young, the "aggrieved person. " Because KRS 344.615(2) is the more specific of the two provisions in conflict, the mandatory terms of KRS 344.615(2) prevail on the facts presented.
Absent evidence to the contrary, this office has no reason to question the Commission's assertion that all of the requested information and records have been provided to Mr. Crosby, including the final investigative report, except for the 12 items listed; however, most of those documents appear to fall into the broad category of "information derived from the investigation" based upon the limited evidence of record. Without the benefit of additional insight regarding the nature and content of the documents withheld or a binding judicial opinion interpreting this language, the Attorney General must conclude that Mr. Crosby is entitled to any existing records which are responsive to his request by virtue of KRS 344.615(2). 5 Because the Commission has not established with adequate specificity that each of the 12 items withheld are not properly characterized as "information derived from the investigation," as required to satisfy its burden of proof under KRS 61.880(2)(c), this office must err on the side of openness. To the extent the Commission is relying upon KRS 61.878(1)(i) and (j) in withholding same, this office is not persuaded insofar as both of these are general confidentiality provisions; more importantly, KRS 344.615(2), a narrowly tailored and mandatory disclosure provision does not conflict with provisions of the Open Records Act. In short, KRS 344.615(2) is entirely consistent with the basic policy of the Open Records Act declared at KRS 61.871. 6
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 In conclusion, Mr. Dove explains that the Lexington Fair Housing Council has filed a civil action against the Commission in Fayette Circuit Court; consequently, Mr. Crosby "could easily request the preliminary and internal documents through the Rules of Civil Procedure." However, "in the context of an open records request" the records are protected by KRS 61.878(1)(i) and (j).
2 KRS 61.878(1)(i) and (1)(j), respectively, exclude the following records from application of the Open Records Act absent a court order:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
With regard to application of KRS 61.878(1)(i) and (j) in the context of a request for information and records generated in the course of investigating other kinds of discrimination complaints filed under KRS Chapter 344, the analysis contained in 06-ORD-121 and 04-ORD-163 is controlling; however, the more specific language of KRS 344.615(2)prevails in this context.KRS 61.878(1)(k) excludes: "All public records or information the disclosure of which is prohibited by federal law or regulation [.]" Noticeably absent from the Commission's response is any indication of which federal laws or regulations apply or which records can purportedly be withheld under federal law.
3 KRS 344.250(6) provides:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
Included among those records excluded from application of the Act in the absence of a court order are those described at KRS 61.878(1)(l) as: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 344.250(6) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). With regard to application of KRS 344.250(6), the analysis contained in 06-ORD-121, 00-ORD-209, and 99-ORD-224 (the only prior decision involving a housing discrimination complaint which this office resolved on the basis of KRS 344.250(6) because neither party referenced KRS 344.615(2)) would be controlling if not for the more specific language of KRS 344.615(2).
4 Although the Commission belatedly elaborated upon its position, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a 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 original denial. In denying future requests, the Commission should also be guided be guided by these basic principles.
5 While certain items, like the Investigative Log, may not fall into this category, the record on appeal does not substantiate this assertion.
6 See 06-ORD-048 (implementing regulations of the Health Insurance Portability and Accountability Act of 1996, coupled with KRS 209.140(5), pursuant to which information obtained as a result of investigations conducted by Cabinet for Health and Family Services under Chapter 209 cannot be divulged to anyone except certain enumerated individuals, of which requester was one, compelled the CHFS to honor the request); see also 02-ORD-19; Compare 04-ORD-228 (CHFS properly denied request based on relevant provisions of the Family Educational Rights and Privacy Act, coupled with KRS 620.050(5), pursuant to which information and reports derived from investigations conducted by the CHFS under Chapter 620 cannot be divulged to anyone except certain enumerated individuals, of which requester was not one).