Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Education and Workforce Development Cabinet violated the Kentucky Open Records Act in denying Angela M. Hughes' June 10, 2010, request for a copy of "AD # 07-04721A, which was referred to by Ford Motor Company, on Form # 412A." In a timely written response, Clay J. Lamb, Office of Legal and Legislative Services, denied Ms. Hughes' request, explaining that such records "pertain to another individual and, therefore, are confidential under KRS 341.190(3), thus, we cannot provide you with those records." Mr. Lamb further advised that such records "are excluded from application of the Open Records Act under KRS 61.878(1)(l) because they are '[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.'" In accordance with 05-ORD-186, this office affirms the agency's denial on the basis of KRS 341.190(3).
On appeal, Mr. Lamb elaborated upon the Cabinet's position, explaining that "42 U.S.C.A. § 503 makes it clear that federal funding for a state's unemployment program is in jeopardy if the state discloses information in any manner other than that permitted by the federal regulation and the state regulations or statutes which require the same restrictions." Mr. Lamb added that "20 CFR § 603.1 provides '[t]he purpose of this part is to implement the requirements of Federal UC law concerning confidentiality and disclosure of UC information.'" To permit Ms. Hughes access to the information requested, Mr. Lamb asserted, "would violate both federal and state law. Additionally, it would jeopardize federal funding of the state's unemployment insurance program." In responding to Ms. Hughes' assertion that confidential information contained in the records may be redacted KRS 61.878(4) in order to satisfy her written request, Mr. Lamb correctly argued that "[a]ll unemployment insurance information and records are confidential pursuant to KRS 341.190(3) and may be disclosed only subject to the narrowly drafted exceptions[,]" none of which apply here "as Ms. Hughes is seeking the confidential unemployment insurance records of another individual that sought unemployment benefits." Mr. Lamb also noted that in 05-ORD-186 this office "recognized the confidentiality of 'records made by the cabinet in the administration of this chapter.' The information Ms. Hughes requested is a Referee Decision referenced as AD # 07-04721A. The Referee Decision is a record made in the administration of KRS Chapter 341 and is confidential by the clear wording of the statute." We agree.
Resolution of the question presented, as indicated, turns on the application of KRS 341.190(3) , pursuant to which:
Information obtained from an employing unit or individual and other records made by the cabinet in the administration of this chapter are confidential and shall not be published or be open for public inspection, except as provided [in subsections (a)-(f).]
(Emphasis added.) None of the statutory exceptions codified at KRS 341.190(3)(a)-(f) are implicated here.
Our duty in rendering any decision involving statutory interpretation "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)(citation omitted). In so doing, 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 expressed.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). As the Attorney General has observed, this office is not "empowered to rewrite statutes to suit [its] notion of sound public policy when the General Assembly has clearly and unambiguously established a different notion."
Leadingham v. Smith, 56 S.W.3d 420, 429 (Ky. App. 2001); 05-ORD-186.
Applying these fundamental principles to KRS 341.190(3), in 05-ORD-186 this office affirmed the denial by the Cabinet (then "Education Cabinet" ) of a request for "'all decisions of the Kentucky Unemployment Insurance Commission for 2004 and the months of January thru May of 2005 that relate to the issue of who is considered to be a employer for purposes of having to pay state unemployment insurance tax.'" 1 Relying upon the unambiguous language of KRS 341.190(3) and KRS 151B.280(3)(requiring the Secretary of the Cabinet to "develop and promulgate administrative regulations which protect the confidential nature of all records and reports of the Office of Employment Training which directly or indirectly identify a client or former client" without consent), the Attorney General held that these "broadly worded confidentiality provisions . . . must be deemed applicable to the requested final decisions as 'records made by the Cabinet in the administration of Chapter [341],' and [they] preclude access except as otherwise specifically provided." 05-ORD-186, p. 5. A copy of 05-ORD-186 is attached hereto and incorporated by reference. 2 Because the instant appeal presents no basis for departing from this governing precedent, as in 05-ORD-186 this office must conclude that "[h]owever compelling Ms. [Hughes'] need for the [requested Referee Decision], the referenced confidentiality provisions erect an impenetrable barrier to access which this office cannot breach." 05-ORD-186, p. 5.
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.
Angela M. HughesClay J. Lamb
Footnotes
Footnotes
1 As a corollary of that holding, the Attorney General overruled OAG 83-405 in light of the 1990 amendments to KRS 341.190(3), which extended protection to "records made by the cabinet in the administration of this chapter . . . ." Although KRS 341.190(3) was amended in the years following issuance of 05-ORD-186, this language remained intact. None of the subsequent amendments to KRS 341.190(3)(a)-(f) alter the validity of 05-ORD-186 or the holding of this decision.
2 This office found that the "referenced state and federal provisions extend protection to the disputed records," and ultimately declined to "invade the legislative prerogative." 05-ORD-186, p. 6 (citation omitted). As in this case, the Cabinet specifically relied upon 42 U.S.C. § 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(k).