24-ORD-010
January 17, 2024
In re: Dan Holman/City of Georgetown
Summary: Under 40 KAR 1:030 § 4, the Attorney General may not
reconsider a decision rendered under the Open Records Act (“the Act”).
The Office will not reconsider 23-ORD-301, in which it found that the
City of Georgetown (“the City”) properly withheld notes relating to the
termination of an employee under KRS 61.878(1)(i). The City did not
violate the Act when it withheld drug test results of a former employee
under KRS 61.878(1)(a).
Open Records Decision
This appeal concerns two separate requests for public records. On November
27, 2023, Dan Holman (“Appellant”) submitted a request to the City for “the document
created by the Human Resources Director that reports about the circumstances of the
firing” of “an executive level employee” on August 21, 2023.1 The City denied the
request by referencing its disposition of a previous request by the Appellant for the
same document on October 5, 2023, which was the subject of the Attorney General’s
decision in 23-ORD-301.
Under 40 KAR 1:030 § 4, “[t]he Attorney General shall not reconsider a
decision rendered under the Open Records Law.” In 23-ORD-301, the Office affirmed
the City’s denial of the Appellant’s request because the requested record is exempt
under KRS 61.878(1)(i) as “notes.” The Appellant now seeks to relitigate whether the
record constitutes “notes” that are exempt under KRS 61.878(1)(i). Because the facts
and issues presented here are identical to those in the previous decision, a new
decision regarding the same record would amount to a reconsideration of 23-ORD-
301. The Office declines to do so. See, e.g., 20-ORD-148.
1
The request also described five other categories of records the Appellant sought to inspect, but he
is not appealing the City’s disposition of those parts of his request.For his second request, submitted on December 5, 2023, the Appellant sought
a “full email chain, with attachments included, that was exchanged between” two
individuals. In a timely response, the City provided the emails the individuals
exchanged2 but withheld “three pages containing drug test results [of a former
employee] in accordance with KRS 61.878(1)(a), (k), and (l).” The City explained that
the “personal nature of these types of records outweigh[s] the public’s interest in
disclosure” and “[t]he City is required to maintain confidentiality of certain records
under 803 KAR 15:280, Section 4.” The Appellant disagrees, claiming the results of
the drug tests should be open for public inspection.
KRS 61.878(1)(a) exempts from disclosure “[p]ublic records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy.” This exception requires a
“comparative weighing of the competitive interests” between personal privacy and
the public interest in disclosure. Ky. Bd. of Exam’rs of Psychologists v. Courier-
Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
“At its most basic level, the purpose of disclosure focuses on the citizens’ right
to be informed as to what their government is doing.” Zink v. Commonwealth, Dep’t
of Workers’ Claims, 902 S.W.2d 825, 829 (Ky. App. 1994). Here, the public’s right to
monitor its government must be weighed against the asserted privacy interest of an
individual in his toxicology report. In 09-ORD-156, the Office recognized that the
results of a toxicology report implicate a privacy interest and that, in some cases,
KRS 61.878(1)(a) may support withholding the results. However, in that decision, the
Office held that the person’s privacy interest in the report diminished once she was
charged with a crime in connection with those results. Therefore, the Kentucky State
Police did not carry its burden of showing that the public’s right to be informed about
the law enforcement function of government was outweighed by the individual’s right
of privacy in evidence used in a criminal case, notwithstanding that the criminal
charges against the individual had been dismissed. Nevertheless, the Office also
noted that, “if any bright line demarcates a heightened privacy interest [in a
toxicology report], it is the line between being charged and not being charged” with a
criminal offense.
Here, the Appellant has not claimed the former employee was criminally
charged in connection with the drug test. In further support of the former employee’s
heightened privacy interest in the record, the City asserts it is a “drug-free
workplace” under KRS 304.13-167(6) and the regulations promulgated by the
Department of Workers’ Claims, and it is bound by certain confidentiality rules as a
result. Under 803 KAR 25:280 § 4, which the Department has promulgated under
KRS 304.13-167(6), “[r]ecords of drug or alcohol test results, written or otherwise,
2
The City redacted a private email address under KRS 61.878(1)(a). That redaction is not at issue
in this appeal.received by the employer shall be confidential communications and shall not be
disclosed by the employer to any party” without a court order or a release signed by
the employee. In light of the public policy expressed in this regulation, the Office
concludes that the heightened privacy interest in the drug test results of a former
employee in a drug-free workplace, who has not been criminally charged, outweighs
the public interest in disclosure of the records. Accordingly, the City did not violate
the Act when it withheld the test results.3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#561
Distributed to:
Mr. Dan Holman
M. Todd Osterloh, Esq.
Emilee Buttrum, Esq.
Hon. Burney Jenkins
3
Because KRS 61.878(1)(a) is dispositive of this issue on appeal, it is not necessary to address the
City’s alternative arguments under KRS 61.878(1)(k) and (l).