March 1, 1994
IN RE: Davy Jones/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Davy Jones, Associate Professor of Toxicology at the University of Kentucky, to the University's Official Records Custodian, Mr. Donald B. Clapp, on December 20, 1993. Those records are identified as "the description sent by [Vice Chancellor] David Watt to . . . [Mr. Suresh Gopalan's] mentor (a Dr. Jayaraman), as well as the correspondence received by David Watt from Mr. Gopalan's mentor concerning . . . [the problems between Mr. Jones and Mr. Gopalan]." Mr. Jones indicates that Mr. Gopalan was a graduate student at the University who worked, in part, in his research program, and who was terminated because of his inability to satisfy the job's requirements. On December 23, 1993, Mr. Clapp denied Mr. Jones' request, advising him "that Dr. Watt's letter to Dr. Jayaraman and the response thereto are exempt from disclosure pursuant to the provisions of KRS 61.878(1)(h) in that those records are 'correspondence with private individuals.'" This appeal followed.
In his letter of appeal, Mr. Jones identifies several deficiencies in the University's response. Chief among these, and in our view the most critical, is the University's failure to explain how the requested records, which deal with Mr. Jones' oversight of Mr. Gopalan's studies and his role in the letter's termination, fall outside the purview of KRS 61.878(3). It is Mr. Jones' position that because the correspondence between Mr. Watt and Dr. Jayaraman relate to him, it must be released to him. In support of this position, he attaches a copy of the memorandum prepared by Mr. Watt in
which the Vice Chancellor specifically refers to Mr. Jones and "his role in dealing with Mr. Gopalan. . . ."
Unable to resolve this dispute on the facts presented, on January 31, 1994, this Office asked that the University furnish us with a copy of the disputed records pursuant to KRS 61.880(2). Mr. Clapp subsequently forwarded to us copies of Dr. Jayaraman's October 2, 1993, letter to the University, Dr. Watt's October 6, 1993, reply, Dr. Watt's October 21, 1993, memorandum to Richard Edwards and Daniel Reedy, and a follow-up letter from Dr. Watt to Dr. Jayaraman dated October 21, 1993. These documents were not disclosed to other parties, and have been destroyed.
The question presented in this open records appeal is whether the University of Kentucky properly relied on KRS 61.878(1)(h) in denying Mr. Jones' request for the correspondence between Mr. Watt and Dr. Jayaraman. For the reasons set forth below, and based on this Office's decision in 94-ORD-9, we conclude that the University violated the Open Records Act in denying Mr. Jones' 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 administrative investigations by an agency.
The provision formerly referred only to "state employee[s]," and had been interpreted by this Office as being applicable to
state personnel governed by Chapter 18A of the Kentucky Revised Statutes. See, e.g., OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees." We reaffirm our position that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) and (i), with the exception of those noted in the concluding sentence of the provisions, when an open records request is submitted by a public agency employee or university employee. We reiterate that to the extent that the cited opinions are inconsistent with this holding, they are modified to reflect this change in the law.
As we noted in 94-ORD-9, KRS 61.878(3) is expansively worded, and Mr. Clapp's denial of Mr. Jones' request suggests an interpretation of that provision which is at odds with its clear meaning and intent. We have examined the correspondence which is at issue in this appeal. In each of these letters, Mr. Jones is either referred to by name, or Mr. Gopalan's termination, in which he is reputed to have played a role, is discussed. It is clear that the letters "relate" to Mr. Jones within the meaning of KRS 61.878(3). That provision mandates release of the letters even if they might otherwise be characterized as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]" The University is directed to promptly arrange for Mr. Jones to inspect the disputed documents.
The University of Kentucky may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be
notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donald B. Clapp
Vice President of Administration
and Open Records Custodian
University of Kentucky
104 Administration Building
Lexington, Kentucky 40506-0032
Mr. Davy Jones
Associate Professor of Toxicology
Graduate Center for Toxicology
204 Funkhouser Building
University of Kentucky
Lexington, Kentucky 40506-0054