NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

January 25, 1993

 

93-ORD-6

 

 

 

 

 

 

IN RE: Susan Gayle Reed/Eastern Kentucky University

 

 

OPEN RECORDS DECISION

 

 

This matter comes to the Attorney General on appeal from Eastern Kentucky University's denial of Ms. Susan Gayle Reed's November 2, 1992, request to inspect certain records in the University's custody. Those records are identified as:

 

  • (1) All written complaints filed against Dr. Bruce Wolford with the Director of Affirmative Action since January, 1991;

    (2) Copies of all findings of fact and recommendations for the above complaints;

    (3) Copies of all of the Affirmative Action Committee's review of, and report on, the investigation of each grievance.

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    • Ms. Reed is the editor of The Eastern Progress, and her request was made under the Kentucky Open Records Act.

     

    In a letter dated November 2, 1992, Dr. Charles D. Whitlock, denied Ms. Reed's request. He explained that the record would be withheld for the following reasons:

     

  • (1) Such documents would contain "informa- tion of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy." The result of disclosure would have a chilling effect on persons who may have a grievance and would also cause any person wrongly accused to suffer. Further,

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  • disclosure could prejudice any civil or criminal proceedings which might arise from a complaint.

    (2) Such documents would contain informa- tion which had been disclosed in confidence.

    (3) Such documents would be preliminary in nature and would not reflect action by the agency.

    •

    • Dr. Whitlock did not cite the specific exception authorizing nondisclosure, although he indirectly referenced KRS 61.878(1)(a), (h), and (i), nor did he briefly explain how the relevant exceptions applied to the records withheld.

     

    It is Ms. Reed's position that the requested records are not preliminary in character, but reflect final agency action. In support of her position, she cites Eastern's Affirmative Action Plan, which provides for the issuance of Findings of Fact and Recommendations by the Director of Affirmative Action following the filing of a written complaint and a formal investigation. Those Findings of Fact are reviewed by the Affirmative Action Committee which then issues a report, a copy of which is presented to the President of the University. She argues that this written report is the final action taken by the Committee, and must therefore be treated as a public record. She asks that the Attorney General issue a decision consistent with this view.

     

    The question presented in this appeal is whether Eastern Kentucky University violated the Open Records Act in its denial of the requested records. For the reasons set forth below, we conclude that although the University may have had grounds to invoke one or more exceptions to the Act to authorize nondisclosure of the requested records, its failure to do so, coupled with its failure to explain how the exceptions applied to the records withheld, constituted a violation of the Open Records Act.

     

    KRS 61.880(1) provides, in part:

     

  • Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such

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  • request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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.
    •

    • Dr. Whitlock's response was deficient insofar as he failed to cite the exception or exceptions authorizing nondisclosure, and he failed to briefly explain how the exceptions applied to the records withheld. OAG 90-26; OAG 90-112; OAG 91-176. The burden of proof in sustaining a public agency's denial of a request for records rests with the agency. KRS 61.880(2); KRS 61.882(3). To meet its statutory burden of proof, an agency must identify all documents withheld from inspection, and state the specific reasons for withholding those documents.

     

    We do not mean to suggest that Eastern Kentucky University could not have legitimately asserted that some or all of the records requested by Ms. Reed were exempt from public inspection. As a rule of general application, the complaint which initiates an investigation 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. City of Louisville v. Courier-Journal & Louisville Times Co., Ky. App. 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983). Until final action is taken on the complaint, those documents may be treated as preliminary in character, and are exempt under KRS 61.878(1)(h) and (i).

     

    It is conceivable that no final action has been taken on the complaint or complaints filed against Dr. Wolford since January, 1991, or that none of the findings of fact and recommendations prepared by the Director, or reports prepared by the Committee, were adopted by the University in its final action. However, Dr. Whitlock cites no exception and provides no explanation for the University's denial of Ms. Reed's request, other than an indirect reference to KRS 61.878(1)(a), the privacy exception. The University has therefore failed to sustain its statutory burden of proof. It should promptly arrange for Ms. Reed to inspect the requested records.

     

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    93-ORD-6

     

     

    Eastern Kentucky University may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

     

    CHRIS GORMAN

    ATTORNEY GENERAL

     

     

     

    AMYE B. MAJORS

    ASSISTANT ATTORNEY GENERAL

     

    lil/1689

     

    Distributed to:

     

    Dr. Charles D. Whitlock

    Eastern Kentucky University

    Coates Box 1-A

    107 Coates Building

    Richmond, Kentucky 40475-3101

     

     

    Ms. Susan Gayle Reed

    The Eastern Progress

    117 Donovan Annex

    Richmond, Kentucky 40475-3113

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

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