Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Union Fire Protection District properly relied on 94-ORD-54 in partially denying David R. Long's June 30, 2008, request for "a copy of Brian M. Anderson's entire personnel file, including but not limited to, all records and documents pertaining to complaints, investigations, and disciplinary records." 1 We find that because Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008) supercedes the analysis in 94-ORD-54, the Fire District's reliance on that open records decision was misplaced. That Kentucky Supreme Court opinion declares that a request for a named individual's inmate file, and by analogy a request for a named individual's personnel file, "is adequate for a reasonable person to ascertain the nature and scope of [the] open records request" and therefore satisfies KRS 61.872(2). Chestnut at 661. In light of the Supreme Court's holding in Chestnut, we find that it is incumbent on the Fire District to "sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised by reasons of privacy," or some other statutory exception, and provide Mr. Long with a copy of all nonexempt records contained in Mr. Anderson's personnel file. 2 Chestnut at 664; KRS 61.878(4).
In 03-ORD-012, this office departed from a line of open records decisions dating back to 1988 in determining that "a request for access to a personnel file requires no greater degree of specificity than any other open records request, and that the agency must therefore 'determine what is and is not subject to Open Records.'" 03-ORD-012, p. 7. Our decision was premised on the long-overdue recognition that "the language of the Act, which merely requires that the requester 'describe' the record or records to be inspected . . .[does not support] the holding" in 94-ORD-54, those decisions upon which it was based, or those decisions based upon it. A copy of 03-ORD-012 is attached hereto and incorporated by reference.
In 03-ORD-117, the Attorney General extended this analysis to an inmate's request for his institutional file, determining that the request "was sufficiently specific . . . ." 03-ORD-117, p. 1. The Department of Corrections appealed the Attorney General's open records decision, and in April 2008, the Supreme Court affirmed our interpretation of KRS 61.872(2), opining:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
Chestnut at 661 (emphasis in original). Continuing, the Court observed:
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see - the content of his own inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen.
Id. In so holding, the Court noted that the underlying inmate appeal, and the Attorney General's open records decision arising therefrom, "was based upon an extension of his recent decision in an open records request for school district employees' personnel files," and that the Attorney General's "decision to extend its treatment of school employees' personnel files to an inmate's request to see his own inmate file was logical . . . ."
Applying this rationale to Mr. Long's request for Mr. Anderson's personnel file, we find that although the Fire District advanced a good faith argument, based on 94-ORD-54, that Mr. Long's request was improperly framed, that decision was superceded by 03-ORD-012, and, most importantly, by Commonwealth v. Chestnut, above, a copy of which is attached hereto and incorporated by reference. As noted, Mr. Long's request "was adequate for a reasonable person to ascertain the nature and scope of [his] request," Chestnut at 661, and satisfied the requirements for a "description" found at KRS 61.872(2). It is therefore incumbent on the Fire District to "separate the excepted and make the nonexcepted material available for inspection." KRS 61.878(4). In so doing, the Fire District must identify, in writing, any records withheld and "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. " KRS 61.880(1). Until it has done so, its duties under the Open Records Act will not be fully discharged.
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 The Fire District released to Mr. Long records relating to a disciplinary action against Mr. Anderson, characterizing that portion of his request as "a specific request for documents."
2 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 examination.