Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
Summary : Louisville Regional Airport Authority failed to meet its burden of proof to show that federal statute and regulations exempted disclosure of all personnel files, disciplinary records, and letters of separation of airport law enforcement officers. 02-ORD-12 is overruled to the extent that it is inconsistent with this decision.
Open Records Decision
At issue in this appeal is whether the Louisville Regional Airport Authority (RAA) violated the Open Records Act in denying the release of personnel files, disciplinary records, and letters of separation regarding airport law enforcement officers. For the reasons set forth below, we find that the RAA violated the Act.
By letter dated February 1, 2018, Jason Riley, WDRB News, made a request to the RAA in which he asked for "[t]he personnel file and any disciplinary action taken against Captain Matt Kolter, [including], but not limited to, an initiating investigative letter, a suspension notification and complaints." 1 Natalie Ciresi Chaudoin, Director of Public Relations, RAA, responded to Mr. Riley's request by letter of February 5, 2018. Ms. Chaudoin denied the request on the basis that the personnel files of airport law enforcement officers constitute "sensitive security information" (SSI) under 49 U.S.C. § 114(r) 2, as defined in 49 C.F.R. § 1520.5(a)(1) 3, and as such, are exempt from the Open Records Act. 4
On March 6, 2018, Travis Ragsdale, also of WDRB News, made a request for "[c]orrespondence between Louisville Regional Airport Authority and Matt Kolter and James Sohan regarding their employment status between Jan 1 and Mar 1. This would include but is not limited to termination, retirement or resignation letters." 5 The RAA responded, again citing to 49 U.S.C. § 114(r), and 49 C.F.R. § 1520.5(a)(1) as the basis for denying the request.
On April 9, 2018, Marcus Green ("Appellant"), WDRB News, appealed to this Office the denials by the RAA of "the personnel file of former airport employee Matt Kolter; and ? correspondence in the personnel files of Mr. Kolter and former airport employee James Sohan."
Brenda Allen, Vice President of Legal Affairs, RAA, responded to the appeal by first referring to an earlier decision of this Office, 02-ORD-12. In that decision, this Office upheld the RAA's denial of a reporter's request for items from the personnel files of airport police officers and incident reports taken by the Airport Police Department. That decision recognized that the RAA was an "Airport Operator," and was thus required to comply with the federal regulations' "broad restrictions" concerning airport security activities and personnel. 6
On April 6, 2018, this Office requested that the RAA provide the records responsive to the requests of Mr. Riley and Mr. Ragsdale for an in camera review by this Office under the authority of KRS 61.880(2)(c) 7 and 40 KAR 1:030, Section 3. 8 Those records were provided on May 23, 2018. While we cannot reveal the specifics of the records provided for our review, those records generally contained what would reasonably be expected to be found in personnel files and the correspondence requested by the WDRB reporters. KRS 61.880(2)(c) places the burden of proof in sustaining the action [denial of records] on the public agency. Under the record of this appeal, we find that the RAA failed to meet its burden of proof to sustain its denial of the requested records.
In KRS 61.871, the General Assembly declared that the basic policy of the Open Records Act "is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed , even though such examination may cause inconvenience or embarrassment to public officials or others." (Emphasis added.) Thus, we must strictly construe the exception, KRS 61.878(1)(k), which allows a public agency to withhold public records under applicable federal law or regulation. In applying this strict construction to the federal laws relied upon by the RAA as its authority for withholding the entire personnel file, disciplinary records, and separation letters of former airport law enforcement officers, we find that that RAA's application of those laws was without sufficient support.
In an Informal Letter Ruling, OR2011-14757, the Texas Attorney General decided a claim of exemption based upon 49 U.S.C § 114(r), just as the RAA does in this appeal. The records in question were military orders pertaining to an individual from the Department of the Navy. The City of Tomball claimed that those military orders were exempt from public release under 49 U.S.C § 114(r). That Texas Informal Letter Ruling determined otherwise:
This provision [49 U.S.C § 114(r)(1)(c)] authorizes the Under Secretary [the head of the Transportation Security Administration] to prescribe regulations that prohibit disclosure of information requested not only under the FOIA, but also under other disclosure statutes. Cf. Public Citizen, Inc. v. Federal Aviation Administration, 988 F.2d 186, 194 (D.C. Cir. 1993) (former section 40119 authorized Federal Aviation Administration Administrator to prescribe regulations prohibiting disclosure of information under other statutes as well as under FOIA). Thus, the Under Secretary is authorized by section 114(r) to prescribe regulations that prohibit disclosure of information requested under the Act.
Pursuant to the mandate and authority of section 114 of title 49, TSA [Transportation Security Administration] published regulations in title 49 of the Code of Federal Regulations that took effect June 17, 2004. See 69 Fed. Reg. 28066. Section 1520.1(a) of these regulations explains that the regulations govern the "maintenance, safeguarding, and disclosure of records and information that TSA has determined to be Sensitive Security Information ["SSI"], as defined in § 1520.5." 49 C.F.R. § 1520.1(a). Section 1520.5 lists sixteen categories of information that constitute SSI.
You indicate that the information in Exhibit 4 is within the purview of section 114(r) of title 49 of the United States Code. We note, however, that section 114(r) is limited to "information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act." 49 U.S.C. § 114(r)(1). Exhibit 4 consists of military orders to an individual from the Department of the Navy. You have not explained how these orders concern aviation and transportation security. Further, you do not explain, nor are we able to determine, how the information at issue falls within any of the sixteen categories of information that constitute SSI. Accordingly, we find that the city has not demonstrated that the information at issue is subject to the requirements of section 114(r) of title 49 of the United States Code and its implementing regulations.
Id. 9
We find the analysis applied in the Texas Informal Letter Ruling to be persuasive when applied to the facts and arguments in this appeal. The RAA cited to 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(a)(1) as its bases for denying the records request but, like the City of Tomball, did not explain how these records concern aviation and transportation security, or how the records at issue fall within any of the sixteen categories of information that constitute Sensitive Security Information.
In our request to review the records at issue, we also promulgated the following requests to the RAA:
Please provide any support that you are aware of for the interpretation of 49 C.F.R. § 1520.5(a)(1) as a basis for withholding all information in a personnel file, especially in light of Mr. Green's observation that LRAA disclosed such information in the past.
Also, please provide any authority (court decisions, administrative law decisions -- federal and/or state) that you are aware of that may provide further guidance on denial of personnel and/or disciplinary records, of the type requested by Mr. Ragsdale and Mr. Riley, based on the authority of 49 C.F.R. § 1520.5(a)(1).
Although the RAA provided the records for our review, it did not provide any explanation of how the federal regulations or statutes apply to the withheld personnel files, disciplinary records, and separation letters. The only response to our request for additional support or authority for withholding the records was that the RAA was "unaware of any disclosures of public safety personnel records that are inconsistent with the controlling Attorney General Opinion or federal regulation. " Without further explanation of how the regulations or statutes support nondisclosure of the requested records, we find that the RAA did not meet its burden of proof pursuant to KRS 61.880(2)(c).
KRS 61.878(1)(k) exempts "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " In our decision, 02-ORD-12, our analysis of the federal law ended with a broad deference to federal law regarding sensitive security information:
Whatever its practices were in the past, the RAA must adhere to the broad restrictions imposed by the FAA on access to information obtained in carrying out security activities and security sensitive information, including personnel files of airport police officers and the incident reports they generate, and we must defer to the FAA and the RAA in their interpretation of the applicable federal law.
Id. , p. 12.
While 49 C.F.R. § 1520.5(a)(1) does prohibit disclosure of information which the Transportation Security Agency has determined would "constitute an unwarranted invasion of privacy (including, but not limited to, information contained in any personnel, medical, or similar files[,])" that information must be "obtained or developed in the conduct of security activities[.]" In the context of 49 C.F.R. § 1520.5(a), "the conduct of security activities" does not clearly implicate the personnel files, disciplinary records, or separation letters of airport law enforcement officers. Decisions of this Office have determined that public agencies cannot deny disclosure of public employee personnel files in their entirety on the basis of KRS 61.878(1)(a), the provision in the Open Records Act that provides for the withholding of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]" Without further explanation by the RAA, we cannot agree that the entirety of the requested records were records of "a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
In 03-ORD-012, 10 this office held that the Berea Independent School District had improperly denied a request for the complete personnel record s of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id. , p. 7; 08-ORD-175. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. See 07-ORD-192. As the Attorney General has frequently observed, there is ample authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [résumé] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment ? . In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records ? . Letters of resignation submitted by public employees have also been characterized as open records.
03-ORD-012, p. 8 (citing 97-ORD-66, p. 5); 03-ORD-213. "These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment." 93-ORD-32, p. 3; 00-ORD-090. Because the requested files contain both excepted and nonexcepted material, the RAA is permitted to redact any excepted material, but is required to make any nonexcepted material available for inspection or copying after the RAA identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) 11 and KRS 61.880(1). 12 S ee 08-ORD-175. Our review of the records at issue revealed that a large quantity of the information contained therein is not information that would constitute an unwarranted invasion of personal privacy if it were publicly disclosed.
The Attorney General has, on occasion, reviewed whether federal laws and regulations are incorporated into the Open Records Act by operation of KRS 61.878(1)(k), and gives proper deference to those laws and regulations where appropriate. See, e.g. , 17-ORD-159 (8 C.F.R. § 236.6 prohibited release of federal detainers, Department of Homeland Security Form I-247, by Lexington Fayette Urban County Government); 05-ORD-054 (Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations promulgated thereunder at 45 C.F.R. Parts 160 and 164 prohibit release of specific personal health information); and 05-ORD-128 (49 C.F.R. § 24.9 of the Relocation Act prohibited Louisville Regional Airport Authority from releasing information of specific individuals relocated). We do not dispute that 49 C.F.R. § 1520.5(a)(1) and 49 U.S.C. § 114(r) are incorporated into the Open Records Act, it is merely that the RAA has not provided a sufficient basis for its interpretation of the federal law and regulation to entirely prohibit disclosure of personnel files, disciplinary records and separation letters of airport law enforcement officers.
Overruling 02-ORD-12 . Kentucky's highest court has determined that this Office is "permitted to reexamine -- and even reject -- its former interpretation of the law" rather than "perpetuate . . . an erroneous interpretation of the law." Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008). We note that our decision, 02-ORD-12, was issued on January 22, 2002, shortly after the events of September 11, 2001, when erring on a broad interpretation of federal laws governing airport security was understandably at its greatest. With the passage of time, we can now place that deference in a more reasoned and experienced context. To the extent that this decision modifies our former interpretation of the federal laws relating to disclosure of personnel files of airport law enforcement officers, we have attempted to "explicitly and rationally justify [our] change in position." Chestnut at 663 (citing In re Hughes and Coleman, 60 S.W.3d 540, 544 (Ky. 2001)). That change is postulated on a strict construction of KRS 61.878(1)(k) previously cited to support nondisclosure of personnel files of airport law enforcement officers, and a continuing commitment to the statement of legislative policy declaring that "free and open examination of public records is in the public interest." KRS 61.871. To the extent that 02-ORD-12 is inconsistent with this view, it is hereby overruled.
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 proceeding.
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