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 City of Morgantown violated the Open Records Act by denying the September 21, 2007, open records request of Ronald Burden for a copy of an unsigned letter that was sent to City council woman Eva Hawes and referred to in the written reprimand that Mr. Burden received on April 23, 2007. Because Mr. Burden is a former "public agency employee," he is entitled to a copy of the requested letter that relates to him, by virtue of KRS 61.878(3), regardless of whether the letter is correspondence with a private individual and would otherwise be exempt under KRS 61.878(1)(i).
In his September 21, 2007, request to now Mayor Eva Hawes, Mr. Burden submitted the following request:
This written request comes after several verbal requests for a copy of the letter supposedly written by a Morgantown citizen that was referred to in the written reprimand that I received on April 23, 2007. (A copy of this letter is enclosed) I am entitled to copies of any and all items that were referred to in this reprimand. At this time I am requesting a copy of the letter and a copy of the tape that was made at that meeting.
(Emphasis in original.)
On October 9, 2007, Mr. Burden, after receiving no response to his request, initiated the instant appeal.
After receipt of notification of the appeal, Jonathan S. King, Attorney for the City of Morgantown, provided this office with a response to the issues raised in the appeal. In his response, Mr. King advised:
City of Morgantown for its response to the Notice of Appeal of Open Records Request states that the document requested was an unsigned letter from a private individual to council woman Eva Hawes (prior to Ms. Hawes becoming mayor) and was considered private correspondence. The letter writer requested it be kept private. K.R.S. § 61.878(1)(i) clearly excepts private correspondence. At the time the letter was written, Ms. Hawes was not the chief executive of the City and so did not have the power to fire or discipline him. The letter was never considered a part of Mr. Burden's file and has never been placed in it. Though the letter was referenced in a meeting with Mr. Burden, it was not considered in his job review and was not placed in his file. The writer of the letter wanted the letter kept private for fear of some sort of retribution from Mr. Burden. As Mr. Burden is retired and will never be affected by the letter; the letter is not in his file and was not used in any review of his past performance and yet he still strongly insists on having a copy, it is conceivable that the writer of the letter has good reason to keep the letter private.
To begin, we find that the City failed to comply with KRS 61.880(1) in not responding to Mr. Burden's September 21, 2007, initial request. KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. The only response of record is the City's October 16, 2007, Response to Notice of Appeal of Open Records Request. The failure to respond to the initial request was a procedural and substantive violation of the Open Records Act.
For the reasons that follow, we conclude that Mr. Burden is entitled to a copy of the letter that relates to him by virtue of KRS 61.878(3), regardless of whether the letter is correspondence with a private individual and would otherwise be exempt under KRS 61.878(1)(i).
As a former public agency employee, Mr. Burden 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 construing KRS 61.878(3), the Attorney General has observed:
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. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register. " 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 agency 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.
97-ORD-87, p. 4.
In 01-ORD-126, this office upheld the line of decisions holding that 61.878(3) applied to former public agency employees. Accordingly, by virtue of the rights granted by KRS 61.878(3), Mr. Burden is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to him." Thus, preliminary drafts, notes and correspondence with private individuals, whether in electronic or printed form, which relates to Mr. Burden, which would be otherwise shielded from disclosure by KRS 61.878(1)(i) as to the public generally, must be made available him. Accord, 94-ORD-9; 95-ORD-97; 96-ORD-8; 98-ORD-34; 01-ORD-126; 03-ORD-118. KRS 61.878(3) trumps any available exception for nondisclosure because the letter relates to him.
The City argues that the letter in issue was never considered a part of Mr. Burden's file, was never placed in his file and though the letter was referenced in the meeting was not considered in his job interview. KRS 61.870(2) defines the term public record as "all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) The letter was sent to a member of the City council and is a public record in the possession of the City, both of which qualify as a "public agency" as defined in KRS 61.870(1)(a) - (d). The letter was used or referred to in the reprimand meeting and, thus, qualifies as a public record in the possession of a public agency. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1994). 1
The City's response does not indicate whether he was provided with a copy of the audio tape from the April 23, 2007, meeting in which he was involved and relates to him. He would be entitled to a copy of the audio tape for the same reasons set out above, under KRS 61.878(3).
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 Although City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of a public agency to produce public records.