NOT PUBLISHED 

 

 

 

 

 

 

 

 

93-ORD-108

 

September 27, 1993

 

 

 

 

 

IN RE: Jack Stephenson/Cabinet for Human Resources

 

 

OPEN RECORDS DECISION

 

This appeal originated in a request for records submitted by Mr. Jack Stephenson to the Cabinet for Human Resources on behalf of his client, DUI Defendant Referral, Inc. On June 30, 1993, Mr. Stephenson requested a copy of a complaint which was sent to the Cabinet, with a request for anonymity, and which prompted an investigation of his client. It is Mr. Stephenson's position that the complaint is a public document, and must be made available for inspection, the request for anonymity notwithstanding. He expresses the belief that "[a] series of transactions has occurred strongly indicating a systematic effort to tortiously interfere with the business of DUI Defendant Referral . . . ." Withholding the letter, he asserts, will "have the effect of assisting the author of the letter in his legal and tortious efforts."

 

On July 2, 1993, Mr. Charles P. Lawrence, a Cabinet attorney, responded to Mr. Stephenson's request. Relying on KRS 61.878(1)(g) and (h), he denied the request. Mr. Lawrence explained:

 

The substance of the letter relates to matters which involve regulatory investigation by the Cabinet and potential administrative adjudication and premature disclosure of the letter would harm the agency because this letter contains information which will be used in the course of the investigation or administrative adjudication. Also, the letter contains the name of an informant who has requested anonymity. See KRS 61.878(1)(g).

 

Furthermore, the letter has been received from a private individual and thus must be denied pursuant to KRS 61.878(1)(h), which prohibits disclosure of 'correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.'

 

This appeal followed.

 

We are asked to determine if the Cabinet for Human Resources violated the provisions of the Open Records Act by denying Mr. Stephenson's request for a copy of the complaint, including the name of the complainant, which prompted an investigation of his client. For the reasons set forth below, and assuming the investigation to be ongoing, we conclude that the Cabinet properly denied Mr. Stephenson's request.

 

This Office, and the courts of the Commonwealth, have consistently held that complaints which initially spawn an investigation may not be excluded from inspection after final action is taken because the public has a right to know what complaints have been made and how they were resolved. City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984); OAG 83-332; OAG 85-77; OAG 85-144; OAG 86-46; OAG 87-32. At the time of Mr. Stephenson's request, no final agency action had been taken in this matter, and the complaint was still under investigation. Pursuant to KRS 61.878(1)(g) the Cabinet is permitted to withhold the complaint until "after enforcement action is completed or a decision is made to take no action[.]" When the matter has been concluded, Mr. Stephenson may resubmit his request for a copy of the complaint, and the Cabinet will be obligated to release all of those portions which are not "exempted by other provisions of KRS 61.870 to 61.884." KRS 61.878(1)(g).

 

The Attorney General has just as consistently recognized, however, that the complainant's identity is exempt from public inspection, except upon court order, pursuant to KRS 61.878(1)(a). OAG 84-315; OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12. We see no reason to depart from that view today.

 

It is instructive to quote, at length, an earlier opinion in which this question was raised. In OAG 84-315, we reasoned:

 

[A]lthough in City of Louisville and Kentucky State Board of Medical Licensure, supra, the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.

 

Second, the standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally, the complainant's identity is protected by the Department's policy of keeping complainant's names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.

 

It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the [public agency] . . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).

 

We believe that this opinion, as well as subsequent opinions in which it is cited with approval, are dispositive of the instant appeal. Although Mr. Stephenson's purpose in seeking access to the requested record may be compelling, this Office has repeatedly held that the purpose for which an individual makes a request under the Open Records Act is not relevant. OAG 78-231; OAG 79-275; OAG 81-345; OAG 82-234; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 91-129. We acknowledge that Mr. Stephenson's concerns are valid, but believe that to compel disclosure of the complainant's name in this instance would establish a dangerous precedent, the likely result of which would be a decrease in the reporting of violations. In addition, we acknowledge that there are occasions when a complainant has a reduced expectation of privacy, as, for example, where the individual has testified in an open hearing. These individuals do not have a cognizable personal privacy interest in keeping their identities confidential. OAG 91-94. However, as a general rule, we believe that the regulatory process would be seriously impaired if we established a blanket rule requiring the release of the identities of complainants where no violation is found.

 

It is therefore the decision of this Office that the Cabinet for Human Resources did not violate the provisions of the Open Records Act in denying Mr. Stephenson's request. When final action has been taken in this matter, or a decision is made to take no action, Mr. Stephenson may resubmit his request, and the Cabinet will be obligated to release the complaint which spawned the investigation. The Cabinet, may, however, withhold the name or names of the complainants. This information can be masked so as not to disclose his or her identity pursuant to KRS 61.878(1)(a) and KRS 61.878(4).

 

Mr. Stephenson 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

 

 

par/955

 

 

Distributed to:

 

Hon. Charles P. Lawrence, Counsel

Department of Law

Cabinet for Human Resources

275 East Main Street, 4W

Frankfort, KY 40621

 

Hon. Jack Stephenson

The Ashland Building - Suite 104

620 Euclid Avenue

Lexington, KY 40502