NOT TO BE PUBLISHED
May 29, 1996
In re: E. L. Gold/City of Hopkinsville
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Hopkinsville's denial of Mr. E. L. Gold's open records request to inspect the following documents: (1) the February 8, 1996 documents or groups of documents preferring charges against Hopkinsville Police Officer James Hubbard, (2) the documents suspending Hubbard from the police force, and (3) the February 15, 1996 documents requesting and granting Hubbard's retirement.
In its initial response, the City acknowledged the existence of the three documents. However, relying upon KRS 61.878(1)(a), it declined to produce the records stating they contained information of a personal nature the public disclosure of which would constitute an unwarranted invasion of Officer Hubbard's privacy.
Subsequently, the City denied an amended request from Mr. Gold to receive edited versions of the documents, stating that it had attempted to find a way to honor this request, but could not edit the documents in such a way that would still protect the privacy interests of Officer Hubbard.
In his letter of appeal, Mr. Gold states that he understands that some limited information in these documents could be private, but that he believes that the formal charges or complaints brought against the police officer, the reason for those complaints, and the resolution of those complaints are and should be a matter of public record and available for inspection.
After receipt of the letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the City provided this office and Mr. Gold with a written response to the issues raised in this appeal. The City states that the charges, the suspension and retirement documents repeatedly reference matters it considers to be of a nature the disclosure of which would constitute an unwarranted invasion of Officer Hubbard's privacy. The City further states that, if the documents did not make repeated references to private matters, the redaction suggested by Mr. Gold might be appropriate.
In addition to the above, to facilitate our review, the City provided us with a copy of the disputed documents. Those documents were not disclosed to Mr. Gold or to third parties, and have since been destroyed.
For the reasons which follow, it is the decision of this office that the City of Hopkinsville improperly withheld copies of the formal charges preferred against Officer Hubbard, his suspension letter and the retirement document in violation of the Open Records Act. However, we find that the City properly withheld, under authority of KRS 61.878(1)(a), copies of two transcribed documents which were attached as exhibits and incorporated into the charges by reference.
In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327, 328 (1992), the Kentucky Supreme Court enunciated the following test for analyzing the propriety of an agency's invocation of the privacy exception:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is `clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Fundamental to this comparative weighing of antagonistic interests is the recognition that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. Kentucky Board of Examiners, supra, at 328. The Supreme Court characterized these antagonistic interests as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records.
However, it is not only the public's interest in knowing whether the police are executing their statutory function that is implicated by this open records appeal. It is also the public's interest in assessing the qualifications and character of an officer of the police department. A policeman is a peace officer charged with enforcing the laws of the Commonwealth. The public, therefore, has a substantial interest in knowing the nature of the charges against him, his fitness to serve, and how those charges were ultimately resolved.
In OAG 81-345, which held that a city wrongfully withheld from public inspection the resignation letters of several police officers under authority of KRS 61.878(1)(a), we stated:
It is our opinion that this exception applies only to matters which have no connection whatsoever with the public business. A police officer is employed by the public and any matter having to do with such employment is the public's business. In OAG 78-133 we said that the public was entitled to know the reason for the demotion of a state policeman when the policeman admitted the charges against him and accepted the demotion voluntarily. In that opinion we held that KRS 61.878(1)(a), the privacy exception, applies only to matters entirely unrelated to the performance of public employment.
The Attorney General has consistently recognized that the privacy exception cannot be invoked to protect a public employee against whom disciplinary action has been taken. Thus, in OAG 88-25, at page 3, this Office held, Disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. OAG 78-133; OAG 87-64; OAG 88-25; OAG 91-41; OAG 91-198; OAG 92-34; 93-ORD-69. In a similar vein, this Office has recognized:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS 61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed, that it was outweighed by the public's right to be informed.
OAG 91-41, at p. 5. Finally, in OAG 78-133, at p. 3, we observed:
If charges are made which are serious enough, if true, to require disciplinary punishment, the public has a right to know what the charges are. When final action has been taken on the charges there is no longer any reason or authority for keeping them confidential.
Accordingly, we conclude that these documents were improperly withheld and should be made available for Mr. Gold's inspection.
As noted at the outset, we do find that the City properly withheld, under authority of KRS 61.878(1)(a), copies of two transcribed statements: a conversation between Hubbard and Major Ousley, Hopkinsville Police Department, on December 7, 1995; and, a transcribed interview of Hubbard by Captain Over, Hopkinsville Police Department, on February 5, 1995. These were attached as exhibits to the charges. The transcribed documents contain material of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, as provided for in the exception of KRS 61.878(1)(a). They include information relating to Mr. Hubbard's private and personal life. Because of the personal nature of the contents, we cannot offer a detailed explanation. Suffice it to say, they include personal reflections by the officer of the consequences of his actions and his efforts in dealing with and overcoming those problems.
In OAG 89-97, we held that a requester is not entitled necessarily to inspect originals of public records where a record contains both information of a public character, and information that would be termed of a personal nature within the meaning of KRS 61.878(1)(a).
KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted available for examination.
The authority provided by KRS 61.878(4) to separate confidential (excepted) information from a record, means, in practical effect, that the public is not always entitled to inspect a literal original. OAG 89-97. Information in the transcripts relating to the performance of Mr. Hubbard's public duty and the charges against him are sufficiently set forth in the charges and the letters of suspension and retirement. Thus, we conclude that the transcribed documents were properly withheld under KRS 61.878(1)(a). Redaction is not necessary in this instance where the nonexcepted material in the transcribed records is adequately set forth in the documents which we have directed the City to make available for Mr. Gold's inspection in this decision. Other exhibits attached to and incorporated into the formal charges, which we conclude do not contain material excepted under KRS 61.878(1)(a), should be provided for inspection.
A party aggrieved by this decision may appeal it 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 proceeding.
A.B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
E. L. Gold
KENTUCKY NEW ERA
The Kentucky New Era Inc.
1618 East Ninth Street
P. O. Box 729
Hopkinsville, Kentucky 42241-0729
T. Mark Withers II
City of Hopkinsville
P. O. Box 707
Hopkinsville, Kentucky 42240-0707
Logan B. Askew
White, White, Askew & Crenshaw
707 South Main Street
P. O. Box 2000
Hopkinsville, Kentucky 42241