Request By:
Ms. Bridget Frailley
Ms. Carrie Hall
Mr. Jay Klein
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in its disposition of Department of Community Based Services employee Bridget Frailley's open records request dated March 13, 2017, and renewed request dated March 27, 2017, for records of an internal investigation concerning a case to which she was assigned. For the reasons that follow, we find that records relating to Ms. Frailley were improperly denied as "preliminary" in the absence of an ongoing criminal or administrative investigation.
The extensive communications that took place prior to this appeal are key to its resolution. Ms. Frailley was temporarily reassigned effective January 31, 2017. When she inquired about the reason for this assignment, she was informed by Gretchen Marshall, Division of Protection and Permanency, that "[a] temporary assignment was requested to review a discrepancy between the way [a] case was described by the region to a local judge, and the way the case was described in the internal review documentation."
In her original open records request, Ms. Frailley asked for a copy of her personnel file, as well as "a copy of an internal investigation conducted by Toya Nicholson in regards to the near fatality case of [name omitted], analysis of the prior completed internal review on that case, as well as any and all recommendations for the child fatality program that was included in her information that was submitted to Director Pam Cotton on or about February 22, 2017." She added:
This "investigation" is DIRECTLY related to the temporary assignment [that] was required of me on or about January 31, 2017.
(Emphasis in original.)
On March 16, 2017, Staff Assistant Jay Klein, Office of Human Resource Management, provided Ms. Frailley with her personnel file, but stated:
A copy of the internal investigation is denied pursuant to KRS 61.878(1)(i), which provides an exemption for "Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " 1
Eleven days later, on March 27, 2017, Ms. Frailley submitted a renewed and reformulated request to Mr. Klein, stating as follows:
I am once again requesting the internal investigation conducted by Toya Nicholson in regards to the near fatality case of [name omitted], analysis of the prior completed internal review conducted on that case, analysis of my case review/assessment of that case, as well as any and all recommendations for the child fatality program that was included in her information/investigation. That information was submitted to Director Pam Cotton on or about February 22, 2017.
I believe I am entitled to that information under KRS 61.878(3): (3) No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him . The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee . . . shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency .
As stated previously, Mrs. Nicholson's review was an investigation about my work, my case reviews, and my assessment of the agency's work on that specific case. Therefore, her review/investigation was directly related to my work and I am entitled to it because I am specifically named in that report.
(Emphasis in original.)
Mr. Klein responded in an e-mail by quoting the language of KRS 61.878(3) pertaining to "ongoing criminal or administrative investigations by an agency," stating that "such language is controlling." Ms. Frailley replied that she did not understand because "[t]o my knowledge, this is not an ongoing criminal investigation and there is nothing that is ongoing administratively." In response to this, Mr. Klein stated that "they never finished the investigation."
Ms. Frailley then inquired whether there was still an ongoing investigation. Mr. Klein replied:
Essentially, since DCBS has not finalized the report, the investigation is still open. You could re-submit an open records request to me every few weeks. However, the grievance process likely will help you get the answers you seek regarding what DCBS investigated.
Ms. Frailley initiated this appeal on April 3, 2017, alleging that "[t]he individual, Toya Nicholson, who was assigned to conduct the review of that investigation, told me that it is complete." Furthermore, she stated, "I have already been involuntarily transferred to another position . . .. Therefore, I have no reason to believe that there is anything pending."
On April 17, 2017, Mr. Klein confirmed to this office that "DCBS does not intend to finalize the report." The Cabinet has made no other response to this appeal, nor has it otherwise alleged to this office that the DCBS investigation is still active.
As accurately quoted by the Cabinet, KRS 61.878(1)(i) exempts from public disclosure "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Nevertheless, as we noted in 06-ORD-270:
as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied.
Accordingly, we concluded in that decision, "[u]nless [the appellant] is the subject of an undisclosed investigation that is ongoing, he is entitled to inspect and obtain copies of [public records] insofar as they relate to him."
In the present appeal, the Cabinet has not indicated the existence of an ongoing investigation, but only of a non-"finalized" report for an investigation it has decided not to finalize. In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) or (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action , the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
(Emphasis added.) By all appearances, the Cabinet has made a "decision . . . to take no action" on the investigation in question. Thus, any records that were adopted as the basis of the agency's decision to take no action, including but not limited to any "complaint, initiating, or charging document," have lost their claimed exemption under KRS 61.878(1)(i). 05-ORD-005 (citing City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); 93-ORD-103; 01-ORD-83)); see also 10-ORD-070.
More pertinently, however, all records that relate to Ms. Frailley, whether "preliminary" or not, must be disclosed to her, unless they relate to "ongoing criminal or administrative investigations" by the Cabinet. 2 KRS 61.878(3). Evidently the Cabinet has attempted to shield these records from disclosure by leaving its report in non-"finalized" form on a permanent basis, notwithstanding the fact that the investigation is no longer ongoing. We therefore find that the Cabinet violated the Open Records Act by denying Ms. Frailley, as a public agency employee, the right to inspect and obtain copies of public records relating to her in the absence of an ongoing investigation.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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