TO BE PUBLISHED 

94-ORD-76

June 9, 1994

IN RE: The Courier-Journal and Louisville Times

Company/Cabinet for Human Resources

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Ms. Deborah Yetter, a reporter for The Courier-Journal, to Mr. William Gardner, Inspector General for the Cabinet for Human Resources, on March 22, 1994. Ms. Yetter requested copies of all reports of alleged abuse of residents at Central Kentucky Treatment Center from January 1, 1989, to the present, including the findings and results of any investigations which were conducted. In addition, Ms. Yetter requested copies of all correspondence relating to those investigations, including follow-up letters or memoranda relating to specific allegations of abuse, or complaints about how the investigations were conducted.

On March 25, 1994, Mr. Charles P. Lawrence, assistant counsel for the Cabinet, responded to Ms. Yetter's request. Mr. Lawrence denied portions of the request, and deferred actions on other portions pending review of the requested records. Relying on KRS 61.878(1)(k), which exempts from the application of the Open Records Law "records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," he explained that the Office of Inspector General conducted investigations into alleged abuse at Central Kentucky Treatment Center under authority of Chapter 620 of the Kentucky Revised Statutes. Mr. Lawrence noted that KRS 620.050(4) prohibits the release of "[a]ll information obtained by the Cabinet or its delegated representative, as a result of an investigation made pursuant to [Chapter 620] . . ." to anyone except certain classes of persons identified in the statute. The news media,

Mr. Lawrence observed, is not among these classes. Accordingly, he denied Ms. Yetter's request for the findings and results of investigations. He advised her that her request for reports of alleged abuse and correspondence related to the investigations would be honored to the extent permitted by law after those documents were reviewed.

In a follow-up letter to The Courier-Journal dated April 11, the Cabinet's Deputy Secretary, Mr. Masten Childers, acknowledged that the Cabinet "must disclose the names of all perpetrators [of abuse] where . . . allegations are substantiated and disciplinary action is taken." Continuing, Mr. Childers observed:

Mr. Childers expressed the view, previously articulated by The Courier-Journal's attorney, Mr. Jon L. Fleischaker, that the confidentiality provision found at KRS 620.050(4) was intended to protect the privacy of families, and not to protect public employees who engage in wrongdoing from disclosure. He explained:

Although Mr. Childers expressed the hope that the Cabinet's dialogue with The Courier-Journal would continue, he advised that his letter "should be construed as a denial of the subject request, to the extent, that it denies disclosure of the names of the alleged perpetrators in those instances where the allegations were not substantiated." (Emphasis in original.)

On behalf of his clients, Ms. Yetter and The Courier-Journal, Mr. Fleischaker initiated this appeal with the

Attorney General on April 22, 1994. In his letter of appeal, he explained that as a result of a series of telephone conferences between The Courier-Journal and Mr. Childers, the Cabinet had furnished Ms. Yetter with most of the requested records. The Cabinet, however, stood by its decision to withhold "'unsubstantiated' complaints of abuse lodged against its employees."

The Courier-Journal challenges this decision, arguing that the Cabinet's reliance on KRS 620.050(4) is misplaced. Mr. Fleischaker concedes that KRS 620 empowers the Cabinet to investigate allegations of child abuse, to remove a child from a dangerous home environment if those allegations are substantiated, and to place the child in facilities such as Central Kentucky Treatment Center. However, he asserts:

For this reason, The Courier-Journal objects to the Cabinet's attempt to categorize its investigation as one conducted pursuant to KRS 620, thereby avoiding public scrutiny.

In the alternative, The Courier-Journal maintains that even if Chapter 620 were applicable, KRS 620.040(4) would not prohibit the release of the requested records. That provision, Mr. Fleischaker explains, applies to "information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter." Ms. Yetter, on the other hand, requested the initial complaints which spawned the investigation and the final action taken by the Cabinet relative thereto. Relying on OAG 91-33, Mr. Fleischaker argues that the Cabinet is obligated to release the complaints, and that although it may withhold the identities of the complainants and the alleged victims, "there is no authority to

support withholding the names of the accused public employees from the complaints." Continuing, he observes:

(Emphasis in original.) In Mr. Fleischaker's view, no other exception authorizes the Cabinet to withhold these records, and they must therefore be disclosed.

In closing, Mr. Fleischaker notes that this Office recently rejected the position taken by the Cabinet relative to unsubstantiated complaints. Citing 94-ORD-27, in which the Attorney General ordered the release of complaints against public employees even though the public agency concluded that there was no basis for action against them, he argued on behalf of his client that the fact that complaints are unsubstantiated does not authorize the agency to withhold them.

In a letter to this Office dated April 20, Mr. Childers elaborated on the Cabinet's position. He distinguished 94-ORD-27, noting that that decision did not involve allegations of abuse and neglect. Mr. Childers asserted:

However, Mr. Childers advised, the Cabinet is uncertain whether it must disclose the names of employees against whom unsubstantiated allegations of abuse are made.

We are asked to determine if the Cabinet for Human Resources properly relied on KRS 61.878(1)(k) and KRS 620.050(4) in denying that portion of Ms. Yetter's request

pertaining to the identities of these employees. For the reasons set forth below, we conclude that the Cabinet's reliance on these provisions was misplaced, and that it failed to meet its burden of proof in sustaining its actions.

As noted, KRS 620.050(4) prohibits disclosure of "[a]ll information obtained by the Cabinet or its delegated representative, as a result of an investigation made pursuant to . . . [Chapter 620] . . ." to all but a few specifically identified classes of individuals not including the news media. This provision is incorporated into the Open Records Law by operation of KRS 61.878(1)(k), which excludes from the mandatory inspection provisions of the law "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The Courier-Journal maintains, and Mr. Childers apparently agrees, that KRS 620.050(4) "was intended to protect privacy of the affected family unit, not to shield a public agency and its employees from public exposure of misdeeds." Letter from Jon L. Fleischaker to Masten Childers dated April 8, 1994, p. 2, cited with approval by Masten Childers in a letter to Jon L. Fleischaker dated April 11, 1994. Mr. Childers demonstrated his support for this view by releasing virtually all of the materials compiled by the Cabinet in the course of its investigation. Nevertheless, these are the only grounds upon which the Cabinet relies in continuing to withhold unsubstantiated complaints of abuse lodged against its employees. We believe that the Cabinet's reliance on this provision is misplaced.

In enacting Chapter 620 of the Kentucky Revised Statutes, the General Assembly sought to effectuate the purposes enunciated at KRS 620.010 relative to the treatment of dependent, neglected, and abused children:

In general, then, it appears that Chapter 620 "empowers the Cabinet for Human Resources to investigate allegations of child abuse in the home and ultimately to remove a child from his or her family if such allegations are substantiated." Letter of appeal from Jon L. Fleischaker dated April 22, 1994. Thus, the shroud of secrecy mandated by KRS 620.050(4) is "not intended to protect the identities of adults [and in this instance employees of a public agency] charged with violations of the criminal laws," 93-ORD-42, p. 8, but is instead intended to protect the affected families, and in particular, the affected children. This much is undisputed.

The Cabinet cannot, in our view, persuasively argue that it is bound by the confidentiality provision found at KRS 620.050(4) in withholding unsubstantiated complaints of abuse against its employees, and, at the same time, that it is free to release most, if not all, of the remaining records it compiled in its investigation of alleged employee misconduct. The terms of KRS 620.050(4) are mandatory: "All information obtained by the Cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged . . . ."  While the Cabinet may well have relied on one or more of the other exceptions to the Open Records Law in denying Ms. Yetter's request, we reject its invocation of KRS 61.878(1)(k) and KRS 620.050(4) in the present context.

If, in fact, the balance of the information released to The Courier-Journal by the Cabinet, and obtained as a result of its investigation, was not excluded from public inspection by operation of KRS 61.878(1)(k) and KRS 620.050(4), neither were the names of employees against whom unsubstantiated complaints were made. This Office has recognized that complaints against public officers and employees are not exempt from inspection after final action is taken, or the decision is made to take no action. See, e.g., 94-ORD-27. As we noted at page 5 of 94-ORD-27, "The fact that [the agency] concluded that there was no basis for action against the [agency employee] has no bearing on whether the . . . complaint must be released. It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct."

Mr. Childers indicates that "[i]n an effort to act in good faith, the Cabinet has provided the Courier-Journal with documents pertaining to the allegations of abuse/neglect with the exception of the identification of the employees. Pseudonyms have been provided in place of the actual names." Continuing, he observes, "we believe we have provided more information than the strict constructionist view of KRS 620.050(4) [requires] . . . ."  Letter from Masten Childers to the Office of the Attorney General dated April 20, 1994. This Office has, however, recognized that "[t]his is not a situation where the Cabinet or the Department have any discretion as they are prohibited by statute from releasing materials and information except in those specifically enumerated situations and circumstances covered by KRS 620.050(4)(a) through (f)." OAG 88-4, at p. 4. The Cabinet's position therefore appears to be internally inconsistent.

In OAG 88-4, we dealt with a set of facts which were similar to the facts presented in that appeal. Allegations of inappropriate restraint and seclusion had been leveled against employees of Northern Kentucky Treatment Center, and the Office of Inspector General was asked to investigate. A representative of Kentucky Youth Advocates, Inc., requested a copy of the report prepared by the Cabinet following its investigation. This Office upheld the Cabinet's denial of Kentucky Youth Advocates' request on the grounds that the investigation was conducted pursuant to KRS 620.050, and that the confidentiality provision found at KRS 620.050(4) was therefore applicable. We did not consider the arguments raised by The Courier-Journal, nor did the Cabinet effectively acknowledge that this provision does not operate to shield public employee misconduct from disclosure. We must defer to the Cabinet in its current interpretation of KRS 620.050. On the law and facts with which we have been provided, and in light of the Cabinet's interpretation of its own statute, we conclude that KRS 620.050(4) is inapplicable. To the extent that OAG 88-4 is inconsistent with this view, it is hereby overruled.

We do not mean to suggest that the Cabinet could not have legitimately asserted that some or all of the records requested by Ms. Yetter are exempt from public inspection under another exception to the Open Records Law. This matter has been referred to the Attorney General's Office for investigation and prosecution. Accordingly, under the theory announced in OAG 83-39, OAG 90-67, and 94-ORD-7, the Cabinet could have invoked KRS 61.878(1)(g) to authorize nondisclosure of these records. In those opinions, this Office held that

where there is concurrent jurisdiction between two agencies, and both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in its own investigation. The Cabinet did not rely on this or any other exception in denying The Courier-Journal's request, and therefore failed to meet its burden of proof in sustaining its denial of that request. The Cabinet should promptly arrange for Ms. Yetter to inspect the remaining records.

The Cabinet for Human Resources 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:

Hon. Masten Childers

Deputy Secretary

Human Resources Cabinet

275 E. Main Street

Frankfort, KY 40621-0001

Hon. Jon L. Fleischaker

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville, KY 40202

Ms. Deborah Yetter, Reporter

The Courier-Journal

525 West Broadway

P. O. Box 740031

Louisville, KY 40201-7431