April 25, 1997

In re: Virginia V. Smith/Executive Branch Ethics Commission

Open Records Decision

The question presented in this open records appeal is whether the Executive Branch Ethics Commission properly relied on KRS 61.878(1)(l), which is misidentified as KRS 61.878(1)(k), and KRS 11A.080 in denying Virginia V. Smith's request to review documents relating to a preliminary investigation conducted by the commission. Ms. Smith, who was the subject of the investigation, was confidentially reprimanded pursuant to KRS 11A.080(4)(a). The commission argues that KRS 11.080(2), which is incorporated into the Open Records Act by KRS 61.878(1)(l), prohibits disclosure of records generated in a preliminary investigation until it makes a final determination, and that this confidential reprimand did not constitute a final determination. We agree. It is the opinion of the Attorney General that KRS 11A.080(2) is controlling.

KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 11A.080(2) to prohibit disclosure of "records relating to a preliminary investigation until a final determination is made by the commission." The language of this provision is clear on its face. Except under narrowly defined circumstances, which are not relevant here, the commission cannot release records generated in a preliminary investigation until it makes a final determination.

Pursuant to KRS 11.080(4), the commission has two options if, during the course of a preliminary investigation, it finds probable cause to believe a violation of the executive branch code of ethics has occurred. It may proceed to an adjudicatory hearing, governed by KRS 11A.100, and upon clear and convincing proof of a violation, publicly sanction the violator. KRS 11A.080(4)(b). Alternatively, it may, by majority vote, issue a confidential reprimand "due to mitigating circumstances." KRS 11A.080(4)(a). In the course of its investigation into the allegations against Ms. Smith, the commission elected to issue a confidential reprimand. This is not the final determination arising from a full-blown adjudicatory hearing contemplated by KRS 11A.100(3)(a) through (e). If it were treated as a final determination, the purpose for which KRS 11A.080(4)(a) was enacted, namely, to privately reprimand employees for potential violations upon a finding of mitigating circumstances, would be defeated. For good or ill, such potential violations would be exposed to the light of public scrutiny. There is no exception in the law for a request for investigatory records submitted by the person who is the subject of the investigation. Perhaps there should be such an exception in view of the clear injustice this confidentiality provision works on the person investigated. This office, however, is bound to "interpret the law as it is and not as we think it should be." OAG 80-54, p. 3. In the absence of an exception, Ms. Smith stands in the same shoes as a third party requester.

In this respect, the provisions of the executive branch code of ethics differ from the Open Records Act. As a public agency employee, Ms. Smith would normally be entitled to inspect and copy "any record including preliminary and other supporting documentation that relates to [her]" at the conclusion of any criminal or administrative investigations by an agency. KRS 61.878(3). The KRS 61.878(1)(h) protection afforded records of agencies involved in administrative adjudication that were compiled in the process of detecting violations would expire after enforcement action was completed or a decision was made to take no action, and she would be entitled to inspect those records. The specific confidentiality provisions of the code of ethics supercede these general provisions of the Open Records Act which have no force and effect in Ms. Smith's case. For these reasons, we conclude that the Executive Branch Ethics Commission did not violate the Open Records Act in denying Ms. Smith's request.

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

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Virginia V. Smith

1095 Hammonds Creek

Lawrenceburg KY 40342

Jill LeMaster

Executive Branch Ethics Commission

Capitol Annex

702 Capitol Avenue

Frankfort KY 40601

Susan Smith Hudson

Law Office of

William K. Moore

126 South Main Street

Versailles KY 40383

Donna G. Dutton

General Counsel

Executive Branch Ethics Commission

Capitol Annex

702 Capitol Avenue

Frankfort KY 40601