Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : Kentucky Commission on Human Rights did not violate the Open Records Act by withholding information and records pursuant to the prohibition against disclosure at KRS 344.250(6). Commission's initial response violated the Act in failing to provide a sufficiently detailed explanation of the cause for delaying access to existing responsive documents as required by KRS 61.872(5), but it corrected that error in its subsequent response to Appellant three days later.
Open Records Decision
The question presented in this appeal is whether the Kentucky Commission on Human Rights ("Commission") violated the Open Records Act in denying Lisa Gaile Thompson's request for a copy of all records regarding her complaint to the Commission. For the reasons stated below, we find that the Commission did not substantively violate the Act, but its initial response constituted a procedural violation of the Act.
Ms. Thompson ("Appellant") filed a complaint with the Commission on April 4, 2016, alleging that the University of Kentucky had discriminated against her. The Commission designated the administrative action as Thompson v. University of Kentucky , KCHR No. 1062-PA. The Commission conducted an investigation of the complaint and, on August 16, 2018, entered an order dismissing the complaint upon a finding of "no probable cause." Appellant submitted a request for reconsideration on October 4, 2018, and that request remains under review by the Commission.
By letter dated June 7, 2019, Appellant requested "an opportunity to inspect or obtain copies of public records of KCHR #1062-PA." The Commission received the request on June 12, and issued a timely response on June 17. The Commission advised Appellant: "[t]he Managing Attorney is in the process of completing a response regarding the information you have requested and requires additional time to review the applicable records and to respond. A formal response will be issued no later than June 20, 2019." On June 20, the Commission responded more fully, granting her request in part and denying it in part. The Commission provided Appellant a copy of all documents submitted by her, or on her behalf, but denied the release of documents received from UK and "the enforcement officer's investigative and preliminary notes, impressions or opinions made during the investigation of the complaint." The Commission based its denial upon KRS 344.200(4), KRS 344.250(6), KRS 61.878(1)(i), (j) and (l), and cited OAG 85-5 and OAG 84-376 in support of its denial. Appellant appealed the Commission's response by letter dated July 14, 2019.
On appeal, the Commission again asserted KRS 344.200(4) and KRS 344.250(6), as incorporated into the Open Records Act by KRS 61.878(1)(l), as its basis for denying Appellant's request for records. The Commission also asserted KRS 61.878(1)(i) and (j) as additional bases for the denial. On August 27, 2019, this office requested the withheld records for an in camera review pursuant to its authority under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and the Commission provided the records for review. 1Our in camera review of those records confirms that the withheld records are information or records the Commission obtained or created pursuant to its authority under KRS Chapter 344.
Commission's Denial Pursuant to KRS 344.250(6) . In a line of opinions and open records decisions dating from 1980, the Attorney General has construed the applicability of KRS 344.250(6) to records in the custody of the Commission on Human Rights and other such agencies that have a responsibility for deciding discrimination claims. KRS 344.250(6) states:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
In OAG 80-148, the office concluded that:
Unless a proceeding has first been instituted under KRS Chapter 344, all information obtained by the Commission remains privileged. In such a case, the Commission must refuse to disclose such information without the person's consent unless ordered to do so by a court of competent jurisdiction.
OAG 80-148, p. 2. The office amplified upon this view in subsequent opinions, noting, for example, in OAG 84-376 that the purpose of this nondisclosure provision, like its federal counterpart:
... is said to be to ensure that those directly involved in the conciliation process can fully and in good faith participate therein, uninhibited by any threat that their statements and actions will be released to anyone not otherwise privy thereto.
OAG 84-376, p. 3 (citing 14 C.J.S. Supp., Civil Rights § 182, p. 301 n. 2).
In 99-ORD-20, the office affirmed the Commission's denial of the complainant's request for records substantiating the basis for its decision to dismiss her complaint. Acknowledging the legitimacy of the complainant's concern that she and her attorney could not adequately address the issue of whether her complaint was properly dismissed if she were denied an opportunity to inspect the records compiled in the investigation, the office nevertheless concluded that:
... it is within the discretion of the Commission to determine when disclosure is "reasonably necessary to the conduct of a proceeding. ... ." KRS 344.250(6). Absent a clear abuse of this discretion, the Attorney General must defer to the Commission's interpretation and application of this provision.
99-ORD-20, p. 3. We believe that the logic of this decision must be extended to this appeal. See also 99-ORD-224 (affirming Louisville and Jefferson County Human Relations Commission's denial of complainant's request to review all records in her closed file on the basis of KRS 344.250(6)). Here, no hearing or final determination has been made, as the Commission is currently reviewing Appellant's Request for Reconsideration of its finding of "no probable cause."
We affirm the Commission's denial on the basis of KRS 344.250(6), as incorporated into the Act by KRS 61.878(1)(l). 2We find that KRS 344.250(6) prohibits the Commission from releasing any of its current records, beyond those that it has already provided to Appellant. As we find that KRS 344.250(6) is dispositive of the Commission's decision, we need not further discuss the Commission's assertion that the records may also be withheld subject to KRS 61.878(1)(i) and (j). 3
Initial Lack of Detailed Explanation for Delay . KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. (Emphasis added).
The Commission procedurally violated KRS 61.872(5) in its initial response of June 17 by stating that a delay was necessary "to review the applicable records and to respond." Such an explanation cannot properly be characterized as a "detailed" explanation as required by KRS 61.872(5). Accord , 04-ORD-044 (holding that delay until the agency "could do some research on the matter," was insufficient to be characterized as a "detailed explanation" of the cause for the delay). The Commission corrected this error in its subsequent response to Appellant on June 20, 2019.
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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states in relevant part:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
40 KAR 1:030, Section 3, states:
KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
2 KRS 61.878(1)(l) allows public agencies to withhold, in relevant part: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, ... [.]"
3 KRS 61.878(1)(i) and (j) allow public agencies to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;