Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Education and Workforce Development Cabinet's Division of Unemployment Insurance improperly relied on KRS 341.190(3) 1 in denying the Kentucky Board of Nursing's May 25, 2011, request for "a copy of all documents in the unemployment case involving [a former employee identified by name] and Humana." As an "employing unit" pursuant to KRS 341.190(3)(b), the Board is entitled to the requested records.
The named employee was employed by the Board for two years, but voluntarily resigned to work for Humana. He was employed by Humana for less than ten weeks. The circumstances of his departure from Humana are in dispute. The Board believes that he voluntarily resigned. The Division has determined that he was "discharged for failing to perform the work to the employer's satisfaction. " Exhibit B, Notice of Determination/Discharge. The Division has further determined that the Board "is the most recent ten week employer and is therefore potentially chargeable on this claim," and the Board has appealed Exhibit C, Notice of Determination/Chargeability. The Board asserts that it is an "employing unit" under the exception to the confidentiality rule found at KRS 341.190(3)(b) and therefore entitled to the records identified in its request KRS 341.190(3)(b) notwithstanding.
The Division responds that the named employee's claim for benefits involved "two different administrative cases":
One is whether [the named employee] is qualified to receive benefits based upon the circumstances of his job separation from Humana. The second is whether the Board of Nursing was [his] most recent ten-week employer, such that its Reserve Account would be chargeable for any benefits that might be paid . . . on that claim . . . . The parties to the administrative case regarding whether [the named employee] is qualified to receive benefits are [the employee] and Humana. The parties to the administrative case regarding whether the Board of Nursing is [the employee's] most recent ten-week employer are [the employee] and the Board of Nursing.
Because "the records in the case between [the named employee] and Humana . . . were not maintained in the administration of the Board of Nursing's account, [and] the Board of Nursing [is not] a party to that case," the Division asserts that KRS 341.190(3) prohibits disclosure of those records to the Board. We disagree.
KRS 341.190(3) provides:
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 below:
Clearly, KRS 341.190(3) prohibits public inspection of information obtained or generated by the Division in the administration of an unemployment insurance claim. The Office of the Attorney General has regularly given deference to the Division's interpretation of this provision. See, e.g. 05-ORD-186 and 10-ORD-158. We are not prepared to give deference to the Division's interpretation of KRS 341.190(3) when, as here, the facts and the law do not support that interpretation.
The Division's determination that the Board is chargeable for the named employee's UI benefits as the most recent ten-week employer is contingent on its determination that the named employee qualifies for UI benefits because he was discharged by Humana for failure to perform his work to Humana's satisfaction. If this matter was before the courts, it would clearly be a single action involving three parties. While the Division may bifurcate these "cases" by employer, it cannot reasonably argue that the "cases" do not relate to a single claim. Nor can the Division properly refuse the Board access to documents relating to that claim simply because the requested records are separately managed and maintained. Accordingly, the Division's refusal to treat the Board as an "employing unit" within the meaning of KRS 341.190(3)(b) and denial of the Board's request on the basis of KRS 341.190(3) was improper.
Although the Board was not a "party" in the "case" between the named employee and Humana, it has a clear and direct financial interest in the outcome of the case. The Division offers no specific legal authority repudiating the Board's argument that it is an "employing unit" entitled to information maintained by the Division in the administration of the named employee's claim pursuant to KRS 341.190(3)(b), and we can locate none. There can be no doubt that the Board is the real party in interest in this matter and therefore entitled to fully understand the basis for the Division's determination that the employee was discharged by Humana. The Division's position that the Board of Nursing does not enjoy the status of an "employing unit," entitled under KRS 341.190(3)(b) to all records pertinent to an appeal of the Division's determination, is factually and legally untenable.
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.
Distributed to:
Nathan GoldmanKimberly WallaceJames C. Maxson
Footnotes
Footnotes
1 KRS 341.190(3) is incorporated into the Open Records Act by KRS 61.878(1)(l) which authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
So, too, are the exceptions to this confidentiality rule found at KRS 341.190(3)(a) through (d).