TO BE PUBLISHED
95-ORD-97
In re: Toy Anne Reardon/Cabinet for Human Resources - Office of Personnel and Budget
OPEN RECORDS DECISION
This appeal originated in the submission of a request for records by Toy Anne Reardon, a records technician at Central State Hospital, to the Cabinet for Human Resources, Office of Personnel and Budget, on April 10, 1995. Ms. Reardon requested access to the "[l]etter written in March, 1995, to Dr. Chua, Paintsville, KY, by Dr. Randall Draper [which] discussed Toy Ann Sammons Reardon." Dr. Draper is associate medical director at Central State Hospital.
In a response dated April 13, 1995, D.T. Maynard, executive director of the Office of Personnel and Budget, denied Ms. Reardon's request. Relying on KRS 61.878(1)(h), Ms. Maynard explained:
Insofar as this letter relates to matters involving ongoing administrative adjudication concerning personnel actions and related personnel matters which involve your employer, the Cabinet for Human Resources, this letter cannot be provided to you at this time. See KRS 61.878(1)(h).
This correspondence is also exempted from disclosure because it constitutes correspondence with a private individual and does not give notice of any final agency action; and it also constitutes a preliminary document in which opinions are expressed. See KRS 61.878(1)(i) and KRS 61.878(1)(j).
In addition, Ms. Maynard noted that the disputed letter had not been made a part of Ms. Reardon's personnel file per KRS 18A.020.
In a follow-up letter to this office dated June 27, 1995, Charles P. Lawrence, assistant counsel in the Cabinet's Office of Counsel, elaborated on the Cabinet's position. He explained:
The two (2) personnel actions referred to in Ms. Reardon's appeal of the Cabinet's denial of her open records request, involve one action pending in the Franklin Circuit Court, Civil Action No. 94-CI-00989, and one pending before the Kentucky Personnel Board, No. 95-065, which remain active at this time. The matter before the Kentucky Personnel Board involves Ms. Reardon's allegations of discrimination on the basis of sex, handicap, and age and that she has been subjected to an unsafe workplace, reprisal, and a denial of reasonable accommodations under the Americans with Disabilities Act (ADA). The Franklin Circuit Court action involves an appeal from a final order of the Personnel Board, dated June 14, 1994, which adopted the Hearing Officer's decision denying two (2) Personnel Board appeals of Ms. Reardon, Nos. 94-256 and 94-343, relating to Ms. Reardon's allegations of penalization without just cause concerning use of compensatory time, reduction or diminishment of job duties and sex discrimination.
Mr. Lawrence maintained that the letter "is in the nature of a confidential referral from one qualified mental professional [sic] to another which is not a part of any official record of the Cabinet for Human Resources." Citing KRS 61.878(1)(h), (i), and (j), he reiterated that the letter is exempt from disclosure because of these ongoing administrative and judicial appeals, because it is correspondence with a private individual which does not give notice of final agency action, and because it is a preliminary document in which opinions are expressed. To facilitate our review, Mr. Lawrence provided us with a copy of the disputed document. That document was not disclosed to Ms. Reardon or to third parties, and has since been destroyed.
In her letter of appeal, Ms. Reardon argues that as a public employee she is entitled to inspect any record which relates to her. In support of this position, she cites KRS 61.878(3). She confirms that the only administrative adjudications currently pending of which she is the subject, and of which she is aware, are the personnel actions referred to in Mr. Lawrence's letter. Ms. Reardon therefore challenges the Cabinet's denial of her request.
We are asked to determine if the Cabinet for Human Resources, Office of Personnel and Budget, violated the Open Records Act in denying Ms. Reardon's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Cabinet improperly denied the request and should release the letter from Dr. Draper to Dr. Chua, of which Ms. Reardon is the subject, to Ms. Reardon forthwith.
It is the opinion of this office that KRS 61.878(3) compels disclosure of the letter from Dr. Draper to Dr. Chua. That statute provides:
No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administra- tive investigations by an agency.
(Emphasis added.) KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), [1]with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related. We believe 93-ORD-19 and 93-ORD-24 are dispositive of this appeal.
Consistent with the general rule of statutory construction codified at KRS 446.080(4), which provides that
"[a]ll words and phrases shall be construed according to the common and approved usage of language, and the specific rule of strict construction of the exceptions to the Open Records Act, codified at KRS 61.871, we believe that the personnel actions which Ms. Reardon initiated cannot properly be characterized as "ongoing criminal or administrative investigations by an agency" within the meaning of KRS 61.878(3). (Emphasis added.) The term "investigation" is defined as "a careful search or examination; systematic inquiry." Webster's New World Dictionary 741 (1974). "Adjudication," on the other hand, is defined as "the act of hearing and deciding (a case .Ê.Ê.Êdispute or problem)." Id., 17. These terms are by no means synonymous. Had it intended KRS 61.878(3) to apply to both the investigative and adjudicative phases of an administrative action, the legislature could have employed both terms. We assume that the legislature purposely employed the single term.
Moreover, KRS 61.878(3) limits public employee access to records relating to the employee only if the investigation is initiated "by an agency." (Emphasis added.) Again, if it were the legislature's intent that the prohibition extend to investigations initiated "against" an agency, it could have so provided by inclusion of the words "by or against." We attach significance to the legislature's particular word choice, and conclude that the limiting language of KRS 61.878(3) prohibits public employee access to their own records only when the criminal or administrative investigation (as opposed to adjudication) is undertaken by (as opposed to against) the agency. Compare KRS 61.878(1)(h) (authorizing nondisclosure of "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.")
We have examined the letter which is the subject of this appeal. Although we cannot disclose its specific content, [2] it can generally be described as a referral letter from Dr. Draper, written in his capacity as associate medical director at Central State Hospital, to Dr. Corozon Chua, requesting that Dr. Chua evaluate Ms. Reardon's psychological condition, stating the contractual terms for the evaluation, providing Dr. Chua with background information, and establishing the guidelines for the evaluation. In his June 27 letter, Mr. Lawrence acknowledges that the evaluation was to be conducted at the Cabinet's expense "in an effort to determine what accommodations and working conditions can be afforded Ms. Reardon by the Cabinet for Human Resources and to settle and resolve, at least in part, her personnel actions concerning her working conditions." It cannot, in our view, be properly characterized as a "confidential referral . . . which is not a part of any official record of the Cabinet for Human Resources." Clearly, it is a public record which was "prepared, owned, used, in the possession of or retained by a public agency," pursuant to KRS 61.870(2), and, because it relates almost entirely to Ms. Reardon, the public employee who requested it, it falls squarely within the parameters of KRS 61.878(3) and must be disclosed to her.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/546
Distributed to:
Ms. D.T. Maynard
Executive Director
Office of Personnel and Budget
Cabinet for Human Resources
275 East Main Street - 4 West
Frankfort, KY 40621-0001
Ms. Toy Anne Reardon
538 Mill Circle Drive
Harrington Mill Estates
Shelbyville, KY 40065
Hon. Charles P. Lawrence
Assistant Counsel
Cabinet for Human Resources
275 East Main Street - 4 West
Frankfort, KY 40621-0001
[1]KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
[2]KRS 61.880(2)(c) and 40 KAR 1:030 Section 3.