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 Department of Military Affairs ("Department") violated the Open Records Act in its denial of Kentucky Center for Investigative Reporting ("KCIR") reporter Brendan McCarthy's November 3, 2017, request to inspect records relating to certain complaints made by state employees. For the reasons that follow, we find that the Department has not met its burden to sustain its total denial of access to these records, but may lawfully withhold some materials.
Mr. McCarthy requested to inspect records meeting the following description:
All complaints made by state employees to your agency, or an agency under your jurisdiction, related to sexual harassment, sex/gender based discrimination or sexual assault since 1/1/2012
Any/all summaries of those internal investigations, and the resolution of those investigations
Any/all records of settlements related to those complaints
Reports detailing any/all disciplinary action taken in response to those complaints, including but not limited to actions against the complainant and the subject of the complaint.
Pursuant to an agreed extension of time, the Department replied on November 20, 2017, that there were 12 "files and/or records" responsive to Mr. McCarthy's request, all of which were denied in their entirety on the following grounds:
12 files and/or records are exempt from inspection pursuant to KRS 61.878(1)(a) as they are public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwanted [ sic ] invasion of personal privacy. Namely, the person making the report expects confidentiality and the identity of the victim could be deduced upon finding the work location and time period of the complaint. Disclosing this information may have a chilling effect on future reporting.
12 files and/or records are exempt from inspection pursuant to KRS 61.878(1)(i) as they are records other than correspondence giving notice of a final action of the agency.
12 files and/or records are exempt from inspection pursuant to KRS 61.878(1)(j) as they are preliminary recommendation and memorandum [ sic ] in which opinions are expressed.
3 of the 12 files and/or records are exempt from inspection pursuant to KRS 61.878(h) [ sic ] as they are actions in adjudication.
3 of the 12 files and/or records are exempt as they are attorney client work product. KCIR initiated this appeal on November 30, 2017. We address, in turn, each of the arguments made by the Department for refusing inspection of the records.
Privacy under KRS 61.878(1)(a)
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dep't of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994).
In this case, it is the Department's burden under KRS 61.880(2)(c) to establish that the privacy interest at issue outweighs the public's interest in scrutinizing the work-related conduct of public employees and assessing the government's response to employee complaints. The Department argues that the complaining employees in the withheld records have an expectation of confidentiality, such that their privacy interest outweighs the public interest in disclosure of any of the requested records, including the outcomes of investigations, settlement agreements, and disciplinary actions taken. In a response to this appeal dated December 7, 2017, staff attorney Charla R. Sands argues:
Records that involve sexual misconduct have previously been the type of records that are held exempt from disclosure because the matters are largely personal. Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992). The assumption of these employees is that the information they provide will be used for internal purposes. In addition, if position, and work station were disclosed as a part of these records, the identity of the complainant may be able to be ascertained. Once employees realize their personal experiences and information may be available to the public, it will have a chilling effect on future reporting.
We observe in the first place that Kentucky Bd. of Examiners, supra, had to do with alleged sexual misconduct by a licensed psychologist in the context of the psychologist-patient relationship, and the records at issue were "rife with details of clients' marital and familial relationships and psychological symptoms, as well as [the psychologist's] clinical impressions and course of therapy." Id., 826 S.W.2d at 328. In this case, by contrast, the records requested by Mr. McCarthy encompassed complaints of discrimination and harassment, in addition to sexual assault. The Department groups all of these under a vague heading of "sexual misconduct" without specifying the nature or category of the 12 complaints at issue (which could in theory be exclusively discrimination complaints pertaining to non-intimate conduct).
Nevertheless, regardless of the specific nature of the 12 complaints, we find that disclosing the requested records would not constitute a clearly unwarranted invasion of personal privacy. "In general, we believe that where the allegations concern a public employee, and arise in the context of performance of his or her employment, the public interest in regulation outweighs the employee's privacy interest. " 98-ORD-45.
"In weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant." 96-ORD-86. While recognizing that such complaints "are of a uniquely sensitive nature," this office has concluded that "conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct." Id.
This principle holds true "as to both substantiated and unsubstantiated complaints of sexual harassment. " 98-ORD-45. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct." 94-ORD-76. Furthermore, "[a]n individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly . . . if the entire process is exposed to the light of public scrutiny [, and p]ublic employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them." 97-ORD-121. Accordingly, we find that the balance weighs in favor of disclosure and the Department has failed to justify the use of KRS 61.878(1)(a) to withhold all of the records at issue.
This is not to suggest that the complaining employees have no cognizable privacy interest in their personal information in highly sensitive cases. 1 Those "portions of the records that contain personally identifiable information implicating significant privacy interests but unrelated to the specific allegations [may] be withheld on the basis of KRS 61.878(1)(a)." 02-ORD-231. Pursuant to KRS 61.878(4), "[i]f any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination." Thus, as to those complainants, the Department may redact "names, occupation, and other specific identifying information or non-work-related statements," provided there is a strong interest in personal privacy and if such redaction does not "obscure . . . the general nature of the complaint [or] make it unduly difficult to assess the appropriateness of the agency's response." 15-ORD-163.
Preliminary records under KRS 61.878(1)(i) and (j)
KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the cases of, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.) In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (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.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659, 660 (Ky. App. 1982). It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. "In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra ).
As to any complaints still pending (of which the Department has indicated there may be as many as three), records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. ( See 10-ORD-065 and decisions cited therein.) Accordingly, records that are part of those pending matters, including the initiating complaints, may be lawfully withheld until "the imposition of final agency action, including the decision to take no action." 05-ORD-005.
As to those matters which are completed , or those complaints on which a decision was made to take no action, the status of each document depends on, first, whether it falls within the scope of KRS 61.878(1)(i) or (j), and second, whether it has been adopted as the basis of final agency action. "Final agency action" is understood as "when the ultimate issue to be decided [is] resolved." University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Counsel for the Department argues as follows:
Materials in the files and/or records are exempt from inspection pursuant to KRS 61.878(1)(i) as they are records other than correspondence giving notice of a final action of the agency and the files and/or records are exempt from inspection pursuant to KRS 61.878(1)(j) as they are preliminary recommendation and memorandum [ sic ] in which opinions are expressed. The information contained in in [ sic ] the records at issue contain [ sic ] notes and items which are work papers and preliminary drafts and not the final report. Typically this is the type of information which is previously been [ sic ] found exempt from and [ sic ] open records request.
We note that exempt records in this context must be in one of the categories specified in KRS 61.878(1)(i) or (j), such as notes or preliminary drafts. Furthermore, even records which fall into those categories do not retain their preliminary character if they are adopted as the basis of final agency action.
The initiating complaint, in particular, must always be made available for public inspection, as it necessarily forms part of the basis of the agency's final action. 05-ORD-005; Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). Therefore, as to those matters which are no longer pending, the Department may not rely upon KRS 61.878(1)(i) and (j) indiscriminately to withhold the entirety of the files pertaining to completed matters, but only those records which specifically qualify under the exemptions and which were not adopted as part of the basis of final agency action.
KRS 61.878(1)(h) and attorney work product
KRS 61.878(1)(h), sometimes known as the "law enforcement" exception to the Open Records Act, permits nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
The Department has invoked this subsection, in conjunction with the attorney work product doctrine, which is codified at CR 26.02(3) and incorporated into the Open Records Act by operation of KRS 61.878(1)(l). ( See, e.g. , 11-ORD-108). Specifically, the Department argues:
Three (3) of the files and/or records are exempt from inspection pursuant to KRS 61.878(h) [ sic ] as they are actions in adjudication and/or exempt as they are attorney client work product in which portions of the work are privileged as attorney-client work product [ sic ].
By its express terms, KRS 61.878(1)(h) applies only to records of "law enforcement agencies or agencies involved in administrative adjudications." The Department has failed to establish that it is either of these. Accordingly, although some of the complaints may be "in adjudication" by some unspecified entity, the Department has not provided sufficient information to meet its burden of proof on this threshold issue. Nor has the Department explained how the records are "compiled in the process of detecting and investigating statutory or regulatory violations" or made a showing of harm to the agency that would result from their disclosure. We therefore find KRS 61.878(1)(h) inapplicable.
As to the attorney work product doctrine, we find a similar failure by the Department to meet its burden. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. " 00-ORD-10. The work product doctrine may only be invoked upon a showing that "each of the elements" in CR 26.02(3) is present. 03-ORD-015. There is nothing in the record to support a claim that all of the records in the files in question represent "the mental impressions, conclusions, opinions, or legal theories of an attorney" within the meaning of CR 26.02(3). While some relevant documents might fall into this category, the Department has failed to meet its burden "to provide sufficiently detailed information to substantiate its position" on this issue. 11-ORD-108.
Conclusion
The Department for Military Affairs violated the Open Records Act by withholding all 12 responsive files in their entirety. Identifying information as to the state employees making the complaints in sensitive cases may be redacted pursuant to KRS 61.878(1)(a) where disclosure would constitute a clearly unwarranted invasion of personal privacy. Investigative files may be withheld as preliminary under KRS 61.878(1)(i) and (j) if final agency action has not yet occurred. As to completed matters, the Department may withhold under KRS 61.878(1)(i) and (j) only those records which fall within the enumerated categories in those subsections and were not adopted as part of the basis of final action. The Department has not met its burden of proof as to KRS 61.878(1)(h) or the attorney work product doctrine.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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