Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville improperly relied on KRS 61.878(1)(a) in redacting names and "personnel matters unrelated to" the requester, Lucy Bickett, from the case summary report she requested on July 30, 2010, and again on September 13, 2010. Ms. Bickett is an administrative assistant in the University's School of Dentistry, and the case summary to which she requested full access was generated by the University's Affirmative Action/Employee Relations Office at the request of the Dean of the School of Dentistry in response to what that office characterized as "allegations of discrimination by [a named male employee] towards Ms. Lucy Bickett" and another named female employee. It is the decision of this office that regardless of whether Ms. Bickett filed a formal complaint or grievance, or was the subject of a formal complaint or grievance, the University's investigation was precipitated by actions and statements attributed to Ms. Bickett. Perforce, the investigation "relates" to Ms. Bickett and is accessible to her in its entirety pursuant to KRS 61.878(3) since the investigation has been concluded.
The University responded to Ms. Bickett's original request on August 4, 2010, assuring her that the requested records were under review and would be available on August 6, 2010. Redacted copies of the records, consisting of a one page cover letter and a thirteen page "Summary Case Report," were released to Ms. Bickett on August 6. The University advised her that, pursuant to KRS 61.878(1)(a), "every occurrence of the names of persons interviewed and portions that concerned personnel matters unrelated to [her]" had been redacted since "disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " On September 13, Ms. Bickett submitted a second request for an unredacted copy of the report. The University denied her request on the same date, asserting that the redacted report "communicates the context and nature of the interviews" and that further disclosure would constitute a violation of KRS 61.878(1)(a). This appeal followed.
KRS 61.878(3) states that none of the exceptions to the Open Records Act "shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him [or her]." This provision has been described, on numerous occasions, as "the exception to the exceptions" and endows public agency employees, including university employees like Ms. Bickett, with a broader right of access to records relating to them than the public's right of access to the same records. Accord, 93-ORD-19; 95-ORD-97; 98-ORD-114; 05-ORD-118; 10-ORD-064. Records containing personal information that would otherwise enjoy protection from public inspection because their disclosure would constitute a clearly unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a) must be made available to public employees if the records relate to them. 1
It is undisputed that Ms. Bickett is a public agency employee within the meaning of KRS 61.878(3). That statute expressly authorizes Ms. Bickett to inspect and copy the Summary Case Report in its entirety and without redactions. The University acknowledges that the investigation has been concluded. No evidence is presented, or argument made, that Ms. Bickett is the subject of an ongoing investigation to which the report relates. KRS 61.878(3) does not recognize an exception to "the exception to the exceptions" for records containing personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and any assurances of confidentiality that were extended to persons interviewed were legally unsupportable in light of KRS 61.878(3) as well as the University's policies. 2 Neither state law nor the University's policies distinguish between investigations initiated by a formal complaint and those initiated at the request of a dean. The University advises that the employees interviewed "were asked to provide their personal observations of the events and provide their opinions of the folks involved." Ms. Bickett was clearly one of the "folks involved." Indeed, it was at the request of the Dean of the School of Dentistry that the Affirmative Action/Employee Relations Office conducted and completed its investigation of allegations of discrimination by a named male employee towards two female employees one of whom was Ms. Bickett. The Case Summary Report related to her and no redactions were permissible. The University's refusal to disclose an unredacted copy of the report therefore constituted a violation of the Open Records Act.
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.
Lucy BickettSherri PawsonAngela Koshewa
Footnotes
Footnotes
1 Kentucky's courts have recognized one exception to this rule for records shielded from disclosure by the attorney client privilege, KRE 503, incorporated into the Open Records Act by KRS 61.878(1)(l). Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001). The University does not invoke the privilege in the appeal before us. KRS 61.878(3) excludes examinations and "any documents relating to ongoing criminal or administrative adjudications by an agency." As noted, the investigation that culminated in the release of the disputed Case Summary Report has been concluded.
2 See http://louisville.edu/hr/affirmativeaction/discriminatory/procedures.ht… (stating that if the Affirmative Action/Employee Relations Office conducts an investigation into allegations of discrimination, "The complainant as well as the respondent will receive a copy of the findings").