NOT TO BE PUBLISHED
January 12, 1994
IN RE: Marvin L. Coan/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for a public record submitted by Professor Rupert T. Pickens, Virginia A. LaCharite, and Raymond C. LaCharite to the University of Kentucky on October 7, 1993. That record is identified as "a letter dated October or November 1992 addressed to the University of Kentucky's Chancellor and copied to the Dean of Arts and Sciences by Mr. John E. Keller, Professor Emeritus of Spanish" which relates to the "proposed realignment of several language Arts departments at the University, including the Department of French." Professor Pickens, LaCharite, and LaCharite are all members of the University's Department of French, and their request was made under KRS 61.878(3) of the Open Records Act.
On behalf of the University, Mr. Donald B. Clapp, Vice President for Administration and Official Records Custodian, denied the professors' request on October 12, 1993. Relying on KRS 61.878(1)(h) and (i), he maintained that the requested record is exempt from disclosure "because it is correspondence from a private individual, and it makes recommendations with regard to the structuring of various University language arts departments." Continuing, he observed:
In your request you invoked KRS 61.878(3) which states that a university employee may obtain a record that 'relates' to him or her. The letter in question, although it mentions you in passing by name, does not 'relate' to you, but rather relates to the author's opinions about how these language arts departments should be realigned. The letter does not relate to your 'work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores,' or any preliminary or other 'supporting documentation' relating to the University of Kentucky's evaluation of your job performance.
Mr. Clapp thus declined to honor the professors' request.
Professors Pickens, LaCharite, and LaCharite subsequently retained Mr. Marvin L. Coan to represent them in an open records appeal of Mr. Clapp's decision. In his letter of appeal, Mr. Coan argues that Mr. Clapp "incorrectly interprets the statute too narrowly and without proper basis refuses to make the letter available to our clients for inspection and copying." In support of this position, he cites 93-ORD-19 in which this Office held that KRS 61.878(3) overrides all of the exceptions to public inspection set forth in KRS 61.878(1)(a) through (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 university employee. Elaborating on this position, he observes:
Mr. Clapp admits that the letter mentions the professors by name. However, he erroneously concludes that the letter from Professor Keller does not fall under any of the categories of records in subsection (3) of the statute. He fails to take note that the terms listed are merely illustrative and are not exhaustive as shown by the statutory language, "included, but not be limited to." A letter which mentions the professors by name and concerns realignment of their department with other Language Arts departments clearly "relates to" those professors and their potential future status as employees of the University of Kentucky. Moreover, we think Professor Keller's letter does fall within the purview of several of those terms mentioned in subsection (3). In particular, his letter concerning realignment of departments may relate to (1) work plans, (2) demotions and promotions, (3) classification, (4) reallocation, and (5) potential layoffs. If the departments are realigned, the jobs may be affected within those departments. Obviously, this has direct effect upon the employees filling those jobs.
Mr. Coan urges this Office to issue a decision which is consistent with these views.
We are asked to determine if the University of Kentucky properly relied on KRS 61.878(1)(h) and (i) in denying Professors Pickens, LaCharite, and LaCharite's request for Profession Keller's letter. For the reasons set forth below, we conclude that the University's reliance on these exceptions is misplaced.
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.
This 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 provision,  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.
We concur with Mr. Coan in his view that KRS 61.878(3) is expansively worded, and that Mr. Clapp's denial of his clients' request represents a narrow construction of the statute which is not warranted by its terms. Mr. Clapp acknowledges that the letter refers to the professors by name, and that its subject is the realignment of the department in which they teach. We do not believe that it can be persuasively argued that the letter does not relate to them. Accordingly, KRS 61.878(3) mandates release of the letter even if it is preliminary in character. The University is directed to promptly arrange for Mr. Coan's clients to inspect the letter.
The University of Kentucky may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in the 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. Marvin L. Coan
Hummel & Coan
Attorneys & Counsellors At Law
17th Floor, Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202-3268
Hon. Donald B. Clapp
Vice President for Administration
and Official Records Custodian
University of Kentucky
104 Administration Building
Lexington, KY 40506-0032
KRS 61.878(1)(j) and (k) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.