NOT TO BE PUBLISHED
January 17, 1996
In re: James E. Clayville/Auditor of Public Accounts
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the denial by the Office of the Auditor of Public Accounts of an open records request by Mr. James E. Clayville to inspect certain records in the Auditor's office.
On September 1, 1995, Mr. Clayville requested to see any formal or informal complaints, accusations made against me by employees of the Auditor of Public Accounts or local officials.
On September 5, 1995, Mr. John Cubine, responding on behalf of the Auditor's office, denied Mr. Clayville's request stating the existence of any such documents would be exempt under KRS 61.878(1)(a) and KRS 61.878(1)(i).
On September 7, 1995, Mr. Clayville resubmitted his request asking for reconsideration on the basis of KRS 61.878(3) which he stated allows an employee to inspect or copy any record including preliminary and other supporting documentation that relates to him.
Mr. Clayville's follow up request was denied on the basis of KRS 61.870(2) and KRS 61.872(6). In his response, Mr. Cubine states, in part:
KRS 61.870(2) defines public records. Personal notes are not considered a public record under this statute.
KRS 61.872(6) states that a request may be denied if it places an unreasonable burden to produce the records. Based on the nature of this request and the unique circumstances of this matter, your request is denied.
In his letter of appeal to this office, Mr. Clayville states that KRS 61.884 allows him this information and that KRS 61.878(3) and (4) support his position that preliminary and other supporting documents relating to him should be made available to him based on KRS 61.878(3). For the reasons which follow, it is the decision of this office that the response of the Auditor's office was inconsistent with the Open Records Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides in part:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
Although the Auditor's office cited KRS 61.878(1)(a), KRS 61.878(1)(i), KRS 61.870(2), and KRS 61.878(6) in support of its denial of Mr. Clayville's request, it failed to briefly explain how these exceptions applied to the records which were being withheld from Mr. Clayville's inspection. To this extent, the response was procedurally deficient and inconsistent with the Open Records Act.
Under authority of KRS 61.880(2) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the agency's response, we requested from the Auditor's office additional information and copies of the records, which are the subject of this appeal. We have examined in camera two sets of files provided to this office. As directed by KRS 61.880(2)(c), we cannot disclose the specific documents contained in the files. However, we can provide a general description of the records in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to those records. To summarize generally, the files, in great part, contain interoffice letters, memoranda, handwritten notes, and other documents related to a personnel incident and problems involving Mr. Clayville and another employee in the Auditor's office.
We are asked to determine whether the Auditor's office acted consistently with the Open Records Act in denying Mr. Clayville's request to inspect these records. For the reasons which follow, it is the decision of this office that Mr. Clayville's request was improperly denied and the records should be made available to him for his inspection.
This conclusion is compelled by 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.
In 95-ORD-97, this office held that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of KRS 61.878(3) and KRS 61.878(1)(k) and (l) which authorize nondisclosure of records made confidential by federal or state law.
Mr. Cubine has indicated to the undersigned that the documents in question do not relate to an ongoing criminal or administrative investigation by the Auditor's office. Thus, they would not be exempt under the final sentence of KRS 61.878(3). Moreover, the agency has not cited a federal or state law which exempts the records from disclosure under KRS 61.878(1)(k) or (l).
The denial of the requested records was primarily premised on a privacy and preliminary document basis under KRS 61.878(1)(a) and (i). While an agency's handling of an internal personnel problem may involve confidential interviews, statements, and opinions from agency employees and preliminary recommenda- tions and memoranda in which opinions are expressed, these factors and otherwise valid policy reasons cannot override the express language of KRS 61.878(3) that 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.
In light of this broad mandate from the legislature, Mr. Clayville is entitled to review those records relating to him. As noted above, 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 to inspect any record that relates to him. Because the foregoing is dispositive of this appeal, we need not address other reasons set out as a basis for denial of inspection of the requested records.
We recognize this result may frustrate and potentially impact an agency's ability to function in internal personnel matters. However, in light of the Open Records Act's general bias toward openness and its specific direction that a public employee shall be entitled to inspect public records relating to him or her, we have no other alternative but to direct disclosure of the records to Mr. Clayville which relate to him.
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
Division of County Audits
Auditor of Public Accounts
2439 U.S. 127 South
Frankfort, Kentucky 40601
Chief Of Staff
Auditor of Public Accounts
144 Capitol Annex
Frankfort, Kentucky 40601