NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

93-ORD-12

 

January 29, 1993

 

 

 

 

 

 

IN RE: Barbara Hamilton/Transportation Cabinet

 

 

OPEN RECORDS DECISION

 

 

This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of Ms. Barbara Hamilton's November 4, 1992, request to inspect certain records in the Cabinet's custody. Those records are described as:

 

Work County Codes #030 and #054

 

All current P-1's Spec. Code 1701, 1702, 1706

 

All employee incident reports from January 1, 1985, through October 31,1991 - Spec. Code 1701, 1702, 1706

 

Written reprimand dated September 30, 1988, to employee John C. Bleier, #402869441

 

Department Dress Code, Memo C10-200 January, 1984

 

Doctors' statements submitted by employee John C. Bleier, #402869441, September, 1992

 

Ms. Hamilton explains that the work county codes identify the location of the state garage which employs the individual whose records are sought. The specification code numbers identify the classifications of the employees whose records are the subject of this appeal.

 

On behalf of the Transportation Cabinet, Mr. Joseph K. Heady, Principal Assistant to the Custodian of Records, denied Ms. Hamilton's request in a letter dated November 9, 1992. Relying on KRS 61.882, he quoted from an earlier opinion of this Office in which the Attorney General observed, "Personnel

 

 

 

 

 

 

93-ORD-12

 

 

files contain material of a personal nature where the public disclosure thereof would consitute an invasion of personal privacy [sic]."1 OAG 77-395, at p. 1. He did not invoke any of the exceptions codified at KRS 61.878(1)(a) - (k) in support of the Cabinet's action.

 

We are asked to determine if the Transportation Cabinet violated the Open Records Act in denying Ms. Hamilton's request. For the reasons set forth below, we conclude that the Cabinet erred in failing to cite a specific exception authorizing nondisclosure of the requested records, and in failing to briefly explain how the cited exception applies to the records withheld.

 

KRS 61.880(1) sets forth the duties of a public agency in responding to a request for public records. That statute provides:

 

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 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.

 

Mr. Heady's reponse 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

 

1The quoted statement correctly reads, "It is the opinion of the Attorney General that personnel files contain material of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

 

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93-ORD-12

 

 

must state under what specific authority it is withholding those records.

 

We do not mean to suggest that the Transportation Cabinet could not have legitimately asserted that some of the records requested by Ms. Hamilton were exempt from public inspection. However, as a rule of general application, "personnel records are subject to inspection, without a court order, unless an agency denies inspection in accordance with one of the particular exceptions set forth in KRS 61.878." OAG 89-90, at p. 6.

 

For example, an employee's P-1 is a document, which when approved, notifies the employee of an action affecting his or her status, pay, position, classification or other condition of employment. Portions of the P-1 contain information of a personal nature within the meaning of KRS 61.878(1)(a). Such information would include social security numbers and home addresses. This Office has, however, consistently recognized that although a public employee is entitled to privacy in his or her personal life and off-duty activities, release of documents containing information which relates to the individual's public employment, such as name, position, work station, and salary, does not constitute an unwarranted invasion of privacy. OAG 76-717; OAG 87-37; OAG 91-48: OAG 91-176. Mr. Heady's blanket denial of Ms. Hamilton's request for the current P-1's of certain employees was therefore improper, particularly in light of his failure to identify the specific exception authorizing nondisclsoure. The Cabinet should have released a "sanitized" version of the P-1's, in accordance with KRS 61.878(4), identified the general nature of the information withheld, and cited the specific exception authorizing partial nondisclosure. The Cabinet should have taken the same approach with respect to each category of records requested by Ms. Hamilton.2 Having failed to do so, it did not sustain its statutory burden of proof.

 

In his November 9 response, Mr. Heady relies on KRS 61.882, a provision of the Open Records Act pertaining to the

 

2The Cabinet might have invoked KRS 61.878(1)(h) and (i), the preliminary documents exceptions, to authorize nondisclosure of incident reports upon which final action has not yet been taken. Similarly, the Cabinet might have relied on KRS 61.878(1)(a), the privacy exception, as authority for its decision to withhold doctors' statements submitted by John C. Bleier.

 

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93-ORD-12

 

 

jurisdiction of circuit court in actions seeking the right of inspection. He cites an opinion of the Attorney General in which this Office held that a public employee's performance evaluation is protected by KRS 61.878(1)(a). In our view, neither the cited statute nor the cited opinion are dispositive of the present appeal. We reiterate that although the Transportation Cabinet may have properly withheld certain records from among those requested by Ms. Hamilton, its failure to cite a specific exception authorizing nondisclosure relative to each category of records, coupled with its failure to explain how the exception applied to the records withheld, constituted a violation of the Open Records Act. The Cabinet should promptly arrange for Ms. Hamilton to inspect the requested records after those records have been properly sanitized consistent with KRS 61.878(4).

 

The Transportation Cabinet 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/1719

 

Distributed to:

 

Mr. Joseph K. Heady

Principal Assistant

Department of Administrative Services

Transportation Cabinet

Frankfort, Kentucky 40622

 

 

Ms. Barbara A. Hamilton

310 North Main Street

Beaver Dam, Kentucky 42320

 

 

 

 

 

 

 

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