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 Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky violated the Open Records Act in the disposition of Madge Brumley's September 10, 2009, request for copies of, inter alia, 1 "all documents . . . that relate to [Ms. Brumley] or mention [Ms. Brumley] by name." (Emphasis in original.) By letter dated September 18, 2009, the Board released "the information [Ms. Brumley] requested," but withheld "any records relating to a preliminary investigation . . . in accordance with local ordinances and KRS 61.878(1)(l) and KRS 11A.080(2) and (3)." In support, the Board cited 97-ORD-70, 02-ORD-44, 07-ORD-201, and 07-ORD-202, 2 asserting that "preliminary investigation records which do not proceed to a formal hearing or other permitted resolution remain confidential . . . ." For the reasons that follow, and based on 09-ORD-170, we find that the Board's reliance on KRS 61.878(1)(l) and KRS 11A.080(2) and (3), as well as its local ordinance, was misplaced and that it violated the Act in denying this portion of Ms. Brumley's request.
In 09-ORD-170, this office analyzed the propriety of the Joint Board of Ethics' denial of Kevin Brumley's request for all records "in the ethics complaint filed by Madge Brumley against Bardstown city employees Mike Abell and Larry Green." We concluded that the Board improperly relied on KRS 11A.080, and a city ordinance mirroring it, in refusing to disclose records generated in its investigation of alleged violations of its ethics code that did not proceed to a final determination. The arguments advanced by the parties in the instant appeal are nearly identical, and the outcome the same.
As we explained in 09-ORD-170, the statute upon which the referenced ordinance was based, KRS 11A.080, applies by its express language to "public servants, " as defined at KRS 11A.010(9), who are attached to "agencies," as defined in KRS 11A.010(10). The term "public servants" is defined as:
(a) The Governor;
(b) The Lieutenant Governor;
(c) The Secretary of State:
(d) The Attorney General;
(e) The Treasurer;
(f) The Commissioner of Agriculture;
(g) The Auditor of Public Accounts; and
(h) All employees in the executive branch including officers as defined in subsection (7) of this section and merit employees[.] 3
The term "agency" is defined as:
every state office, cabinet, department, board, commission, public corporation, or authority in the executive branch of state government. A public servant is employed by the agency by which his appointing authority is employed, unless his agency is attached to the appointing authority's agency for administrative purposes only, or unless the agency's characteristics are of a separate independent nature distinct from the appointing authority and it is considered an agency on its own, such as an independent department[.]
As noted in 09-ORD-170, KRS 11A.015 exempts from Chapter 11A "an agency that is directed by statute to adopt a code of ethics . . . ." Because KRS 65.003 requires cities and counties to adopt a code of ethics, or risk suspension of services or payments to the city or county by state agencies, they are excluded from Chapter 11A. Nothing in KRS 65.003 authorizes cities or counties to treat as confidential "[a]ll . . . proceedings and records relating to a preliminary investigation . . . until a final determination is made," all preliminary investigative records that do not proceed to a formal hearing, or, for that matter, reprimands issued under "mitigating circumstances." Simply stated, the Joint Board has no authority to make confidential nonexempt public records. Unless records of the Joint Board enjoy protection under one or more of the statutory exceptions to the Open Records Act codified at KRS 61.878(1)(a) through (n), they are subject to public inspection and local ordinances to the contrary have no legal effect. See 09-ORD-170 and authorities cited therein.
At page 11 of 09-ORD-170, the Attorney General opined:
Although we are mindful of the principle that "the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context," [Kentucky Board of Examiners of Psychologists v. Courier-Journal, 826 S.W.2d 324, 328 (Ky. 1992)], this office has generally held "that the privacy interests of public employees against whom complaints or grievances have been leveled or allegations made, and the final action relative to those complaints, grievances, or allegations, including the decision to take no action, are outweighed by the public interest in monitoring agency action." 07-ORD-241, p. 4. Likewise, in Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001), the court rejected a police officer's argument that his resignation precluded final action by the agency relative to allegations made against him and that all records that were related thereto qualified for exclusion under KRS 61.878(1)(i) and (j), the "preliminary documents" exceptions. In so doing, the court adopted the reasoning of this office in 00-ORD-107 wherein the Attorney General held that " the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the [employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." (Emphasis added.)
We therefore concluded that in the open records context "'termination' does constitute a 'final determination, '" and that records relating to a terminated investigation are subject to inspection under the Open Records Act if they are adopted in whole or in part as the basis of that action or decision to take no action. 09-ORD-170, p. 11.
Here, as in 09-ORD-170, we find that the Joint Board improperly relied on KRS 61.878(1)(l), KRS 11A.080(2) and (3), and local ordinances in partially denying Ms. Brumley's request. A copy of that decision is attached hereto and incorporated by reference. KRS 11A.080(2) and (3) have no application to city and county codes of ethics, and local ordinances are of no legal effect to the extent they purport to override the unambiguous legislative policy supporting the Open Records Act that is codified at KRS 61.871.
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.
Madge BrumleyChristina BradfordThomas A. Donan
Footnotes
Footnotes
1 Ms. Brumley also requested copies of any electronic recordings of Board meetings. The Board honored this request by providing her with a recording of the Board's September 2, 2009, meeting, the only responsive record it maintained.
2 Each of these decisions construes KRS Chapter 11A in the context of Executive Branch Ethics' records.
3 KRS 11A.010(7) defines "officer" as:
all major management personnel in the executive branch of state government, including the secretary of the cabinet, the Governor's chief executive officers, cabinet secretaries, deputy cabinet secretaries, general counsels, commissioners, deputy commissioners, executive directors, principal assistants, division directors, members and full-time chief administrative officers of the Parole Board, Board of Tax Appeals, Board of Claims, Kentucky Retirement Systems board of trustees, Public Service Commission, Worker's Compensation Board and its administrative law judges, the Kentucky Occupational Safety and Health Review Commission, the Kentucky Board of Education, the Council on Postsecondary Education, and any person who holds a personal service contract to perform on a full-time basis for a period of time not less than six (6) months a function of any position listed in this subsection[.]