NOT TO BE PUBLISHED
April 18, 1996
In re: Richard S. Cagle/Fulton County Public Library District
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Fulton County Public Library District's denial of Mr. Richard S. Cagle's request to inspect the disciplinary letter given to Melinda Cagle on July 28, 1995.
Ms. Elaine Allen, Director, Fulton County Public Library District, denied Mr. Cagle's request, stating the disciplinary document was exempt from Freedom of Information by both state law and federal law. In her denial, Ms. Allen further stated she could not provide Mr. Cagle with a copy of the disciplinary letter without a written release from Melinda Cagle.
In his letter of appeal, Mr. Cagle asks this office to determine whether the denial of access to the disciplinary letter was consistent with the Open Records Act.
Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2), Ms. Allen provided this office with a response to the issues raised in the appeal. In her response, Ms. Allen states:
The file in question belongs to his wife Melinda Cagle. As you will see by my letter to him he was informed that upon receipt of her written consent a copy of the disciplinary record would be given to him. As of this date I have received no such document. Also, he has neglected to inform you that a copy of this document was given to Melinda Cagle on the day of her corrective interview, in late July.
For the reasons which follow, we conclude that the denial of access to the disciplinary letter was inconsistent with the Open Records Act.
The response was procedurally deficient in that it failed to cite the specific exception to the Open Records Act relied upon in denying disclosure of the requested record. KRS 61.880(1) 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 agency action.
A general reference that disclosure is prohibited by state and federal law does not satisfy the requirement of the statute. KRS 61.880(1) requires a public agency to cite the specific exception authorizing nondisclosure and to provide a brief explanation of how the exception applies to the record withheld.
As to the substantive issue, the Library District improperly denied Mr. Cagle access to the disciplinary letter of Melinda Cagle. It is well-settled under the Open Records Act that the complaint which initiates an investigation into employee misconduct by a public agency, the final action taken by the agency relative to the complaint, and any preliminary investigative reports or recommendations adopted by the agency as part of its final action, are public records which must be made available for inspection, unless the agency can establish that those records fall within one or more of the exceptions to public inspection set forth in KRS 61.878(1) (a) through (l). 95-ORD-62.
In analyzing the propriety of release of records relating to public employee discipline under KRS 61.878(1)(i) and (j), the preliminary documents exceptions, the courts and this office have consistently recognized that [d]isciplinary 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 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992); 95-ORD-47.
In a seminal opinion addressing the applicability of these exceptions to such records, the Kentucky Court of Appeals observed, The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon. City of Louisville, supra at 660. Unless some other exception to public inspection applies, public agencies are obligated to disclose records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action.
Nor is disclosure of such record, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. In OAG 91-41, this office stated:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . 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.
The Fulton County Public Library District's response does not articulate a rationale that release of the disciplinary letter would constitute a clearly unwarranted invasion of personal privacy superior to the public's right to be informed as to a public employee's performance of her job and what a public agency is doing in regard to the public's business. Accordingly, we conclude that withholding disclosure of the letter was inconsistent with the Open Records Act. Mr. Cagle, as well as the general public, would be entitled to inspect the public document under the Act. Because the foregoing is dispositive of this appeal, we need not address the applicability of federal law, such as the Freedom of Information Act (FOIA) exemptions.
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
Richard S. Cagle
710 Pecan Circle
Hickman, Kentucky 42050
Fulton County Public Library District
312 Main Street
Fulton, Kentucky 42041