NOT PUBLISHED
94-ORD-31
March 8, 1994
IN RE: Dave Baker/City of Frankfort
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Dave Baker, a staff writer for The State Journal, to the City of Frankfort on February 18, 1994. Mr. Baker requested copies of, "All letters of suspensions, notification, or final action taken for any city employee during the months of January and February of this year." On behalf of the City of Frankfort, Mr. Kenneth R. Thompson, City Manager, denied Mr. Baker's request in a letter dated February 23, 1994. Although he failed to cite the specific exception authorizing nondisclosure, Mr. Thompson argued that KRS 61.878(1) "basically states that 'Public Records of a personal nature the disclosure of which would constitute an unwarranted invasion of personal privacy' [sic] can be exempted from the requirements of the ORA." This appeal followed.
In his letter of appeal, Mr. Baker explains that he seeks "letters of suspension and/or the documents which spawned final action, such as a suspension." He notes that the Kentucky Supreme Court and Court of Appeals have ruled that such records must be made available for public inspection, and asks that this Office issue a decision consistent with this view.
We are asked to determine if the City of Frankfort violated the Open Records Act in denying Mr. Baker's request. For the reasons set forth below, we conclude that the City's denial of his request constitutes a violation of the Act.
From a procedural standpoint, Mr. Thompson erred in failing to cite the specific exception to the Open Records Act authorizing nondisclosure of the disputed records. 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 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
A general reference to KRS 61.878(1) does not satisfy the requirement of the statute, nor does a bare recitation of the language of the exception. KRS 61.880(1) requires a public agency to cite the specific exception authorizing nondisclosure, and to provide a brief explanation of how the exception applies to the record withheld. While it appears that Mr. Thompson intended to cite KRS 61.878(1)(a), the statute mandates that he specifically so state. We urge Mr. Thompson to review the relevant provision to insure that future responses conform to the Open Records Act.
Substantively, the City of Frankfort is on equally perilous ground. As Mr. Baker correctly observes, the courts and this Office have routinely recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 78-133; OAG 87-64; OAG 88-25; OAG 91-41; OAG 91-198; OAG 92-34. In OAG 94-41, at page 5, we reasoned:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS
61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed, that it was outweighed by the public's right to be informed.
Similarly, in OAG 91-198, at p. 3, we opined:
The tortured evolution of [the privacy] exemption has been marked by repeated attempts to broaden its scope in a manner which is entirely inconsistent with the rule of strict construction mandated by KRS [61.871]. The Attorney General has however, consistently recognized that the privacy exemption cannot be invoked to protect a public employee against whom disciplinary action has been taken. . . . Accordingly, the public must be afforded access to records which reflect final disciplinary action against a public employee in matters pertaining to the performance of his public duties.
Finally, in OAG 78-133, at p. 3, we concluded:
If charges are made which are serious enough, if true, to require disciplinary punishment, the public has a right to know what the charges are. When final action has been taken on the charges there is no longer any reason or authority for keeping them confidential.
Based on this line of reasoning, we conclude that the City of Frankfort must release documents evidencing final disciplinary action against city employees, including but not limited to reprimands, suspensions, demotions, and terminations.
The language of Mr. Baker's original request to the city does not mirror the language of his request as it appears in his letter of appeal to this Office. Accordingly, we do not believe that the issue of the propriety of nonrelease
of complaints against city employees spawning final disciplinary action is ripe for appeal. Simply stated, the City did not have an opportunity to respond to Mr. Baker's amended request. Mr. Baker may wish to resubmit his request for complaints to the City.
In anticipation of this act, and to forestall another appeal, we remind the City that the courts and this Office have consistently taken the view that the public has a right to know what complaints have been made against a public officer or employee, along with the final action taken. See, e.g., City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983); OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG 89-74; OAG 91-33; and OAG 92-34. In the meantime, the City is directed to release all documents evidencing final disciplinary action against city employees issued during January and February 1994.
Mr. Baker and the City of Frankfort may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
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Distributed to:
Mr. Kenneth R. Thompson, City Manager
City of Frankfort
315 West Second Street
P. O. Box 697
Frankfort, Kentucky 40602
Mr. Dave Baker
The State Journal
321 West Main Street
P. O. Box 368
Frankfort, Kentucky 40602