June 3, 1997

In re: Mbibong I. Nchami/Morehead State University

Open Records Decision

The issue in this appeal is whether Morehead State University properly relied on KRS 61.878(1)(a), (i), (j), and (k) in denying Mbibong Nchami's requests to inspect records in its custody. Mr. Nchami, a former University employee, requested copies of various records relating to his employment, including records relating to allegations leveled against him and records relating to the University's decision not to renew his contract. For the reasons which follow, we find that the University erred in denying Mr. Nchami access to records relating to him. Despite the fact that Mr. Nchami is no longer a University employee, we hold that KRS 61.878(3) is controlling.

For purposes of clarity, we briefly summarize Mr. Nchami's requests and the University's response:

In the closing paragraphs of its response, the University noted that Mr. Nchami had not complied with KRS 61.872(3) by precisely describing public records which are readily available within the agency. Because of the breadth of his request, the University indicated that it could not comply with the time constraints of the Open Records Act, but would "follow up within a week."

In its follow-up letter to Mr. Nchami, the University agreed to release a copy of the complaint against him, after redacting information relating to the complainant and third parties, and the record reflecting the final personnel action taken. With respect to all remaining records relating to complaints, the University denied his request, citing KRS 61.878(1)(a), (i), (j), and (k). In response to Mr. Nchami's request for records relating to the decision not to renew his contract, the University stated that a copy of the letter notifying Mr. Nchami of his nonrenewal had been sent to his attorney, and that all other documents pertaining to the decision are exempt pursuant to KRS 61.878(1)(i). The University agreed to release his application for employment, contract for services, and related personnel action requests, but indicated that there were no documents in the University's custody representing communications to or from Clell and Kelly Hunt. It is the University's position that KRS 61.878(3) has no application to Mr. Nchami, and that it is entitled to invoke any relevant exceptions to authorize nondisclosure of the requested records because he is no longer a public employee.

In a subsequent letter, dated April 6, 1997, Mr. Nchami challenged the University's initial response. In the course of that letter, he asked for copies of several other records, including records containing the names, addresses, and phone numbers of Morehead's board of trustees, a letter from a Morehead elementary school teacher commenting on his approach to teacher education, a letter from Kelly Hunt's Supervisor, Alvin Maddengrider, to Michael Seelig, Affirmative Action office, contradicting Ms. Hunt's complaint, written testimony of Belva Sammons, and records of any meetings between Clell Hunt and Morehead officials. Based on the written record before us, it appears that the University did not respond to this request.

Resolution of this appeal turns on the construction of KRS 61.878(3), and specifically the question of its intended scope. It is Morehead's position that KRS 61.878(3) is inapplicable to Mr. Nchami because he is not a University employee. We do not agree.

KRS 61.878(3) was amended in 1992, and now 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.

This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible[s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.

As noted, by its express terms KRS 61.878(3) extends to public agency employees, applicants for employment, and eligibles on a register. Although the provision does not contain a specific reference to former employees, we believe that its expansive wording, coupled with the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compel this result. The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to insure that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statutes, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law." Frankfort Publishing Co., Inc. v Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992) citing Kentucky Tax Commission v Sandman, 300 Ky. 423, 189 S.W.2d 407 (1945).

It is simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. Former employees clearly have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them. Former public employees, whether they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment, are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment. Any other reading of KRS 61.878(3) is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole.

With these principles in mind, we turn to the specific records requested by Mr. Nchami and the University's response. It is the opinion of this office that Morehead improperly relied on KRS 61.878(1)(a), (i), and (j) in denying Mr. Nchami access to all otherwise exempt records relating to its decision not to renew his contract, and records relating to complaints about him. To the extent that such records exist, regardless of whether they are preliminary in nature or otherwise excluded from general public access, they must be made available to Mr. Nchami pursuant to KRS 61.878(3) and the open records decisions cited above. Any requested records which implicate the federal Buckley Amendment, 20 U.S.C. 1232g, and are properly classified as education records within the meaning of that statute, may, however, be withheld pursuant to KRS 61.878(1)(k).

Obviously, the University cannot furnish Mr. Nchami with records which do not exist. To the extent that the University advised Mr. Nchami that certain records identified in his request do not exist, its response was consistent with the Open Records Act. OAG 88-44. With respect to records heretofore furnished to the EEOC, KCHR, Alicia Lococco, and William Shouse, we believe the University is obligated to provide Mr. Nchami with copies of their records upon prepayment of reasonable copying charges not to exceed its actual costs and postage charges. KRS 61.874(1); KRS 61.872(3)(b). This office has repeatedly recognized that a public agency cannot withhold public records from an applicant simply because the records may be obtained from another source. OAG 90-71.

We do not believe that the issues raised by Mr. Nchami's second letter, dated April 6, are ripe for review pursuant to KRS 61.880(1). Because of its vitriolic tone and wide-ranging accusations, the University apparently did not treat this letter as an open records request. Therefore no response was issued. Consistent with the principles set forth above, the University is directed to respond to the request for documents in the April 6 letter within three business days of receipt of this open records decision. If the University denies all or any portion of his request, Mr. Nchami may initiate a new appeal.

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:

Mbibong I. Nchami


201 E. Palestine

Madison TN 37115

John G. Irvin, Jr.

McBrayer, McGinnis, Leslie & Kirkland

Suite 300

163 W. Short Street

Lexington KY 40507

Michael Seelig

Special Assistant to the President

Morehead State University

201 Howell-McDowell Administration Bldg.

Morehead KY 40351