October 1, 1993
IN RE: Earl D. Ousley/Kentucky Transportation Cabinet
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. Earl D. Ousley, Director of Pupil Transportation for the Floyd County Schools, to the Kentucky Transportation Cabinet. Mr. Ousley sought to ascertain the identity of the individual who illegally entered his office, copied certain personnel records, and forwarded those records to the Cabinet's Division of Drivers Licensing. On behalf of the Cabinet, Ms. Kim Garvin, Principal Assistant to the Custodian of Records, denied Mr. Ousley's request, advising him:
[A]ccording to KRS 61.878(1) of the Open Records Law, the information which you are seeking may be denied based on the following:
KRS 61.878(1)(a) states 'Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of privacy.'
KRS 61.878(1)(h) states 'Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.'
Ms. Garvin did not offer any explanation of how these exceptions apply to the records withheld or otherwise attempt to sustain the Cabinet's action.
We are asked to determine if the Transportation Cabinet properly denied Mr. Ousley's request for records disclosing the identity of the individual who surreptitiously obtained copies of personnel records and subsequently sent them to the Division of Drivers Licensing. For the reasons set forth below, we conclude that the Cabinet has failed to meet its burden of proof in sustaining its denial of the requested records.
Although Mr. Ousley's request can technically be characterized as a request for information, as opposed to a request for records, the Cabinet treated the request as a request for records, electing not to decline the request on this basis. However, in denying his request, the Cabinet did little more than recite the language of the exceptions. It has long been the position of this Office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3). Ms. Garvin did not attempt to establish that disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy, or explain how the records could be characterized as preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated. We must therefore conclude that the Cabinet failed to meet its burden of proof in sustaining its action, and must immediately release the requested records to Mr. Ousley.
It should also be noted that KRS 61.878(5) encourages public agencies to share information with other public agencies "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." As Director of Pupil Transportation for the Floyd County Schools, Mr. Ousley represents a public agency. Although he does not indicate to what use the requested records will be put, it is conceivable that they are "necessary in the performance of a legitimate governmental function." This provision should be borne in mind by the Transportation Cabinet in responding to other open records requests submitted to it by a public agency or representative thereof.
The Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General shall be served with notice of any actions filed in circuit court, he shall not be named as a party in the action or any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Kim Garvin
Principal Assistant to the
Custodian of Records
Kentucky Transportation Cabinet
Frankfort, KY 40622
Mr. Earl D. Ousley
Director of Pupil Transportation
Floyd County Schools
P. O. Box 1059
Martin, KY 41649