October 11, 1993
IN RE: Sandra E. Downs/Kentucky State University
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted to Kentucky State University on March 18, 1993, by Ms. Sandra E. Downs, an attorney representing undisclosed clients. Ms. Downs requested copies of records relating generally to the University's policies on sexual harassment, and specifically to Dr. Michael Fody, III.
On behalf of the University, Mr. Reginald L. Thomas, General Counsel, responded to Ms. Downs' request in a letter dated March 30, 1993. Although he released several of the documents she requested, he denied her request for "[a]ny and all complaints of any type including written or verbal made to Kentucky State University, its agents, employees or administration concerning Michael Fody, III, Ph.D.," "[r]esults of any investigations made as a result of [these] complaints . . . ," "[n]ames of any witnesses which [sic] were scheduled to testify at any fair hearing which was scheduled to review any decision to terminate or penalize in any way Michael Fody, III, for any reasons," and "[a]ny agreement reached between Kentucky State University and Michael Fody, III, Ph.D. concerning the termination or resignation of Michael Fody, III, Ph.D. from employment with Kentucky State University." Mr. Thomas relied on KRS 61.878(1)(g), noting that the University is currently involved in an administrative investigation of Dr. Fody that may result in an administrative adjudication. With respect to the names of witnesses who might be called in "any hearing related to Dr. Fody," Mr. Thomas invoked the doctrine of attorney work product, noting that such information "is prohibited from discovery under well-recognized legal
privileges." He indicated that at the conclusion of its investigation, the University would honor Ms. Downs' request for complaints, results of investigations, and agreements reached by the University and Dr. Fody.
In her letter of appeal to this Office, Ms. Downs argues that since Dr. Fody is no longer an employee of the University, the administrative investigation into his activities must have been concluded. She therefore maintains that Mr. Thomas's reliance of KRS 61.878(1)(g) is misplaced. Additionally, she argues that Mr. Thomas cannot justify his refusal to release the names of witnesses on the grounds of attorney work product since the Kentucky Rules of Civil Procedure allow discovery of persons whom a party intends to call to testify at trial at CR 26.02(4)(a)(i). She urges us to issue a decision consistent with these views.
We are asked to determine if Kentucky State University violated the provisions of the Open Records Act in denying portions of Ms. Downs' request. For the reasons set forth below, we conclude that the University's response was only partially consistent with the Act.
Among the public records which may be excluded from public inspection except upon order of a court of competent jurisdiction are:
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.
KRS 61.878(1)(g). While we concur with Mr. Thomas in his view that the University is not obligated to release records, including complaints and investigative reports, compiled in the
process of investigating statutory or regulatory violations if premature disclosure of the information contained in the records would harm the University's prospective administrative adjudication, we do not believe that this exception can be interpreted to extend to any other complaints that were previously filed against Dr. Fody and have since been resolved. This Office has consistently recognized that a denial of a request to inspect public records is proper while the investigation of a matter is ongoing and a determination has not yet been made as to whether legal action will be taken. OAG 87-29; OAG 88-25; OAG 88-36; OAG 89-13; 93-ORD-92. When, however, the investigation and administrative action are completed, or a decision is made to take no action, KRS 61.878(1)(g) ceases to apply.
Mr. Thomas does not affirmatively state that no other complaints have been filed against Dr. Fody other than the complaint or complaints which apparently spawned the current investigation. Obviously, the University cannot afford Ms. Downs access to other complaints if none have been filed. If however any other complaints exist, and the investigations arising therefrom have been concluded, KSU is obligated to release them. The same is true of any final actions taken in these matters and investigatory reports or materials incorporated therein. In our view, Mr. Thomas has an obligation to advise Ms. Downs that no other complaints were ever filed against Dr. Fody, or, if other complaints were filed and have since been resolved, he has an obligation to release them along with documents reflecting final action taken, and investigative materials incorporated therein.
While we too question the propriety of Mr. Thomas's invocation of KRS 61.878(1)(g) in the present appeal in view of that fact that Dr. Fody is no longer an employee at KSU, we must assume that the University contemplates enforcement action other than an internal disciplinary action. This is a factual issue which we cannot resolve. We remind the University, however, that KRS 61.878(1)(g) specifically provides that the exemption should "not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
We do not concur with Mr. Thomas in his view that any agreement reached by KSU and Dr. Fody relative to his termination or resignation is excluded from inspection by operation of KRS 61.878(1)(g). This Office has previously stated that the public is entitled to know the reasons for disciplinary actions taken against a public employee, including
demotion or termination. OAG 81-345. The reasoning of this opinion was extended to a public employee's letter of resignation in OAG 85-136. Mr. Thomas does not present any proof to suggest that disclosure of the agreement would harm the University's prospective administrative adjudication. Accordingly, we believe that he improperly denied that portion of Ms. Downs' request, and should release the document forthwith.
Turning to the final issue raised in this appeal, we find that the University improperly relied on the attorney work product doctrine in denying Ms. Downs' request for the names of witnesses who were scheduled to testify in any hearings involving Dr. Fody. Moreover, the University failed to cite the exception to the Open Records Act by which that doctrine is incorporated into the Act. We therefore conclude that if a document exists containing the names of witnesses who were scheduled to testify in any hearings involving Dr. Fody, the University must also release that document.
This Office has consistently recognized that records which are the work product of an attorney prepared or collected in the course of preparation for litigation are not discoverable under CR 26.02(3) and are exempt from public disclosure under KRS 447.154 and KRS 61.878(1)(k). OAG 81-291; OAG 82-295; OAG 85-20; OAG 87-28; OAG 91-53. Civil Rule 26.02(3). CR 26.02(3)(a) provides:
[A] party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the
preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The rationale underlying this doctrine has been described as follows:
The work product doctrine is a court made rule, created in Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947), and subsequently formalized in Federal Rules of Civil Procedure 26(b)(c), and CR 26.02(3)(a). The rule recognizes that 'it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing party and their counsel.' The work product immunity is the embodiment of a policy that a lawyer doing a lawyer's work in preparation of a case for trial should not be hampered by the knowledge that he might be called upon at any time to hand over the result of his work to an opponent.
1 William S. Haynes, Kentucky Jurisprudence: Kentucky Civil Procedure 26.02. CR 26.02(1) requires the disclosure of the "identity and location of persons having knowledge of any discoverable matter." Rather than prohibit the release of names of witnesses, the rules of discovery seem to compel disclosure. See, e.g., Thompson v. Mills, Ky.App., 432 S.W.2d 448(1968). In our view, the University's invocation of the work product doctrine is improper, and records disclosing the identity of witnesses must therefore be released. While it is conceivable that one of the other exceptions to the Open Records Act might have been cited by KSU in support of its decision to withhold the names of witnesses, the University did not cite any other exception, and, as we have repeatedly recognized, the burden of proof in sustaining its action rests with the public agency. It is not the Attorney General's duty to "make the public agency's case."
Ms. Downs and Kentucky State University 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 notified of any actions filed against Kentucky State University pursuant to KRS 61.880(3), the Attorney General shall not be named as a party to these actions or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Reginald L. Thomas
Kentucky State University
Frankfort, KY 40601
Hon. Sandra Downs
Attorney At Law
137 East Main Street
Georgetown, KY 40324