NOT TO BE PUBLISHED
March 20, 1995
In re: Larry J. Allen/Workforce Development Cabinet - Department for Vocational Rehabilitation
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Mr. Larry J. Allen, a branch manager in the Department of Vocational Rehabilitation, to the Department on January 19, 1995. Mr. Allen requested access to his personnel file "and any other related separate files that may be considered" part of his file. Mr. Allen submitted his request to Ms. Sandra L. Conkin, regional administrator for the Department, who denied the request, advising him that his official personnel file is in the custody of the Personnel Department in Frankfort.
We are asked to determine if the Department of Vocational Rehabilitation violated the Open Records Act in denying Mr. Allen's request. For the reasons set forth below, and assuming the facts of this appeal to have been fairly and accurately presented, we conclude that the Department's response constituted both a procedural and substantive violation of the Act.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days of receipt of the request, and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.
The Department violated the Open Records Act to the extent that it failed to respond to Mr. Allen's request in writing and within three working days, or, alternatively, to release the records he requested. As regional administrator for the Department, we would expect Ms. Conkin to have at least a passing familiarity with the Act, and the duties of a public agency under the Act. If she is not the custodian of the public records, she is required to so advise the requester, and furnish the name and location of the official custodian of the records. KRS 61.872(4). If the records are in active use, in storage, or not otherwise available, she should immediately notify the requester, and designate a place, time, and date for inspection not to exceed three days from receipt of the request. KRS 61.872(5). Apparently, Ms. Conkin did none of these things.  We urge the Department, and Ms. Conkin, to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Department violated the Open Records Act by refusing to disclose to Mr. Allen any and all records in his personnel files. KRS 61.878(3) has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. KRS 61.878(3) 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 referenced only "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 only. 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]." We therefore conclude that KRS 61.873(3) overrides any of the exceptions to public inspection set forth in KRS 61.878(1)(a) through (j),  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. There can be little doubt that the records requested by Mr. Allen fall squarely within the parameters of KRS 61.878(3).
We are not persuaded that the existence of an official personnel file which is reposited in the Department of Personnel in Frankfort excuses the Department of Vocational Rehabilitation from releasing any and all records relating to Mr. Allen which are maintained by Vocational Rehabilitation. Mr. Allen may certainly submit a second, independent request to the Department of Personnel for records relating to him which are in its custody, but the Department of Vocational Rehabilitation must honor his request for his personnel records, "unofficial" or otherwise, pursuant to KRS 61.878(3). The Department is directed to promptly release those records to Mr. Allen.
The Department of Vocational Rehabilitation may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Sandra L. Conkin, Regional Administrator
Department of Vocational Rehabilitation
2530 Scottsville Road, Suite 2
Bowling Green, KY 42104
Mr. Larry Allen, Branch Manager
Department of Vocational Rehabilitation
1440 Campbell Lane, Suite 600
Bowling Green, KY 42104
Hon. Sue G. Simon
Office of General Counsel
Workforce Development Cabinet
Capital Plaza Tower, 2nd Floor
500 Mero Street
Frankfort, KY 40601
Although Ms. Conkin was notified that Mr. Allen had initiated an open records appeal with this office ("Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal" sent on January 30, 1995), she made no effort to rebut or otherwise contest the allegations contained in the appeal. However, in a letter dated February 17, 1995, Ms. Sue G. Simon of the Workforce Development Cabinet's Office of General Counsel, stated that neither the Department nor the Cabinet received a written request from Mr. Allen. On March 14, 1995, the undersigned assistant attorney general contacted Ms. Conkin, and a second party who witnessed the exchange between Mr. Allen and Ms. Conkin. Both parties confirmed that Mr. Allen submitted a written request for his personnel file and related records on January 19. We therefore reject Ms. Simon's assertions, and urge the Cabinet to make a more thorough investigation into the facts, and to provide a more accurate recitation of those facts to this office, in the future.
KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
The final sentence of KRS 61.878(3) 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. The Department has adduced no evidence to support a claim that Mr. Allen's personnel files contain such records.