OAG 93-ORD-37


March 23, 1993





IN RE: Kathy L. Hornaday/Cabinet for Human Resources






This matter comes to the Attorney General on appeal from the actions of the Cabinet for Human Resources relative to Ms. Kathy L. Hornaday's February 3, 1993, request to inspect certain records in the Cabinet's custody. Those records are identified as statements made by the residents and staff of the Owensboro Treatment Center to Mr. Charles Babb, Branch Manager of the Residential Services Branch, and other employees of the Cabinet in the course of their investigation into allegations against Mr. Louis Hammond, an employee at the Treatment Center. In addition, Ms. Hornaday requested access to any written reports, summaries, or memoranda prepared by the Division of Licensing and Regulation. Ms. Hornaday is an attorney representing Mr. Hammond, and her request was made under the Open Records Act.


On behalf of the Cabinet for Human Resources, Ms. Peggy Wallace, Commissioner of the Department for Social Services, denied Ms. Hornaday's request in a letter dated February 8, 1993. Relying on KRS 61.878(1)(a), (g), and (h), Ms. Wallace stated that the requested records were exempt from public inspection because they were generated in the course of an ongoing administrative investigation. This Office has since been advised by Ms. Elaine Campbell, Administrative Section Supervisor for the Department for Social Services, that the investigation into the allegations against Mr. Hammond was referred to the Office of the Inspector General. The investigation has not yet been concluded.


In her letter of appeal to this Office, Mr. Hornaday challenges Ms. Wallace's invocation of the cited exceptions. She notes that she would "certainly be entitled to all of this information under the rules of civil preocedure [sic] in a civil matter and most of the information in a criminal prosecution." Continuing, she observes:


It is ridiculous to assert KRS 61.878(a) [sic] as a basis for exemption in this action as I am requesting copies of statements and reports pertaining to alleged conduct of my client.


Ms. Hornaday asks that this Office review the Cabinet's denial of her request to determine if its actions violated the Open Records Act. For the reasons set forth below, we conclude that the Cabinet for Human Resources properly denied Ms. Hornaday's request.


KRS 61.878(3) was amended by the 1992 General Assembly, and now provides:


No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administra- tive investigations by an agency.


The provision extends, by its express terms, to all "public agency employee[s]," and overrides any of the exemptions to

public inspection set forth in KRS 61.878(1)(a) - (i), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee or on his behalf. The final sentence authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Although as a rule of general application KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee, where the employee is under investigation and the documents relate to that investigation the request can properly be denied. Compare, 93-ORD-19 and 93-ORD-24 (holding that a public agency employee is entitled to review records relating to a complaint filed by the employee with an affirmative action office).


Mr. Hammond is a "public agency employee," within the meaning of KRS 61.878(3), and may review any record which relates to him with the exception of examinations and documents relating to ongoing criminal or administrative investigations by an agency. The records which Ms. Hornaday requests on his behalf relate to an ongoing administrative investigation conducted by the Office of the Inspector General, and her request was therefore properly denied pursuant to KRS 61.878(3) and the cited exceptions.


In response to Ms. Hornaday's criticism of the exceptions to the Open Records Act, we note that the Act was not intended to be used as a substitute for discovery procedures. OAG 82-280; OAG 83-356; OAG 89-59; OAG 91-91; OAG 91-124. "Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery." OAG 89-65, at p. 3. It is therefore not the Attorney General's duty to determine whether records would be discoverable in a civil or criminal action. While Ms. Hornaday may be correct in asserting that many of the records she requests would be discoverable, we are limited in our review to deciding whether the Cabinet for Human Resources properly denied her Open

Records requests. It is the opinion of this Office that the Cabinet's actions were entirely consistent with the Open Records Act.


Ms. Hornaday may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.












Distributed to:


Ms. Peggy Wallace

Commissioner, Department

for Social Services

Cabinet for Human Resources

275 East Main Street

Frankfort, Kentucky 40621



Hon. Kathy L. Hornaday

227 St. Ann Street, Suite 208

P. O. Box 712

Owensboro, Kentucky 42302-0712