TO BE PUBLISHED
May 25, 1995
In Re: Michael R. Timmerman/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Michael R. Timmerman's open records request, pursuant to KRS 61.884, to inspect all public records that had been compiled on or about him during the background investigations conducted following his applications for Kentucky State Police cadet trooper classes 69, 70, 71, and 71.
By letter dated October 20, 1994, Diane H. Smith, Official Custodian of Records, Kentucky State Police, denied Mr. Timmerman's request stating that "KRS 61.878(1)(l) exempts records made confidential by separate statute. The records you seek are made confidential by 502 KAR 45:065, Section 5. Therefore, your request is denied."
KRS 61.884, upon which Mr. Timmerman bases his request, provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
Under this statute, Mr. Timmerman asserts he would be entitled to inspect all records compiled on him during the Kentucky State Police's background investigation of him following his application to the cadet trooper classes, unless the disclosure of such records was exempted by KRS 61.878.
The Kentucky State Police states the disclosure of the background investigation of Mr. Timmerman's application is exempted by KRS 61.878(1)(l) which prohibits disclosure of public records which have been made confidential by enactment of the General Assembly. The agency then cites 502 KAR 45:065, Section 5, which relates to background investigations, as authority for denying the request.
502 KAR 45:065, Section 5, provides:
All reports of background investigations shall be confidential. Information obtained as a result of a background investigation shall not be disseminated. Reports of background investigations shall be filed at State Police Headquarters in a secure file to which only the commissioner or persons specially designated by the commissioner shall have access.
Legislative authority for the promulgation of 502 KAR 4:065, Section 5 is provided by two statutes. KRS 16.050 provides, among other things, for the appointment and compensation of personnel by the commissioner and the creation of a state police personnel board with authority to make administrative regulations to carry out its purposes. KRS 16.080 requires the commissioner to adopt rules and regulations for the enlistment of officers of the department and authorizes him to make any other rules and regulations for the governing and operation of the department as appear reasonably necessary to carry out the provisions of KRS 16.010 to KRS 16.170.
Although these statutes provide for the adoption of administrative rules and regulations, there is no express statutory language mandating that all reports of background investigations be made confidential.
An administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment. Curtis v. Belden Electronic Wire and Cable, Ky.App., 760 S.W.2d 97, 99 (1988).
This absence of statutory language making background investigation reports confidential, coupled with the express language in KRS 61.884 and KRS 61.878(3) mandating that any person shall have access to any public record relating to him, leads us to the conclusion that the Kentucky State Police acted improperly in denying Mr. Timmerman's request to review the background investigation reports, based upon KRS 61.878(1)(l). The agency's reliance on its regulation making the reports confidential is misplaced. The regulation cannot enlarge the general terms of the legislature's grant of authority to the commissioner and the state police personnel board to promulgate regulations to make the background investigation reports confidential. To constitute a statutory exemption from disclosure requires express and clear direction from the legislature. There is no such express statutory direction in KRS Chapter 16 to make the reports exempt under KRS 61.778(1)(l).
Supportive of this conclusion is KRS 61.878(3), which 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.
On March 16, 1995, this office, under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, requested that the Kentucky State Police provide additional documentation or statutory authority, other than 502 KAR 45:065, Section 5, to substantiate or support its denial of Mr. Timmerman's open records request.
By letter of March 22, 1995, Mr. Louis F. Mathias, Jr., on behalf of the State Police, responded that the agency's denial of Mr. Timmerman's request was also premised upon KRS 61.878(1)(a), and KRS 61.878(1)(i) and (j). In his letter, Mr. Mathias stated:
The background investigation denial is also premised on a privacy and preliminary document basis. A background investigation includes interviews, evaluations and recommendations from both agency members and citizens. The candid responses required to evaluate an applicant mandate a KRS 61.878(1)(a) privacy exception, recognized by your office in OAG 82-204. In addition, the background investigation contains preliminary matters, notes, correspondence with private individuals, preliminary recommendations, and memoranda in which opinions are expressed, all recognized by your office in OAG 83-332.
It is the opinion of this department that the exceptions set forth above support the denial of access, and are without question exceptions to KRS 61.884. The nature of the background investigation also precludes redacting portions thereof, requiring complete denial.
Although the exceptions relied upon by the State Police have been recognized by our office as valid exceptions to disclosure, they have not been presented to this office in the context of a requester asking to inspect records compiled about him during background investigations conducted following his applications for cadet trooper classes.
In light of the clear mandate of the legislature in KRS 61.878(3), Mr. Timmerman is entitled to review those records regarding his application, including "preliminary and other supporting documents that relate to him." KRS 61.878(3). This would include reports of background investigations. KRS 61.878(3) provides that no exception in KRS 61.878 shall be construed to deny, abridge or impede the right of a public agency employee, including an applicant for employment, to inspect any record that relates to him.
While there may be many policy reasons to support the State Police's regulation requiring that background investigation reports be kept confidential, the regulation cannot override the express language of KRS 61.878(3). Until the legislature enacts a statute requiring background investigation reports to be confidential and an exception to disclosure, even though it relates to the person requesting to inspect it, KRS 61.878(3) controls.
Accordingly, Mr. Timmerman should be permitted to inspect the background investigation reports relating to his applications for the trooper cadet classes which were denied by the agency.
The Kentucky State Police 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 circuit court, but should not be named as a party in that action or in any subsequent proceedings.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Ms. Diane H. Smith
Official Custodian of the Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Mr. Michael R. Timmerman
1001 Perthshire Lane #3
Louisville, KY 40222