NOT TO BE PUBLISHED
96-ORD-86
April 17, 1996
In re: The Daily Independent/Morehead State University
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Morehead State University's partial denial of Daily Independent staff writer, Madelynn Coldiron's, March 8, 1996, request to inspect various records in the University's custody relating to Dr. Michael Harford, a University employee. Specifically, Ms. Coldiron requested copies of:
· Sexual harassment complaints against Michael Harford;
· Personnel actions, including but not limited to reprimands, taken against Mr. Harford in response to those complaints;
· Current personnel action form for Michael Harford and his most recent job application.
Ms. Coldiron agreed that in the interest of protecting the privacy rights of the complainants, the University could redact their names from the complaints.
On the same day, the University responded to Ms. Coldiron's request, providing her with copies of Dr. Harford's most recent personnel action request, and his most recent job application. With respect to her request for sexual harassment complaints against Dr. Harford, and any personnel actions against him, the University asserted that these records are excluded from public inspection by KRS 61.878(1)(a), KRS 61.878(1)(i), and KRS 61.878(1)(j). Relying on Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992), and the two prong privacy analysis contained therein, the University maintained:
Regarding the first prong of the test, the information that you are requesting regarding Dr. Harford, or any other faculty, staff or student, touches upon the most intimate and personal features of private lives. Regarding the second prong of the test, the nature of sexual harassment complaints is that, public knowledge of allegations alone, whether substantiated or unsubstantiated, have a tendency to be believed, and can destroy one's reputation, career and marriage. The court in Kentucky Board of Examiners states, “the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity.” There has been no recent complaint filed against Dr. Harford this semester; therefore, Morehead State University questions what public interest, other than “curiosity,” would be served in responding to a request of this nature.
It was the University's position that the release of information relating to sexual harassment complaints would adversely impact on its established procedures for investigating such complaints, and have a chilling effect on both complainants and respondents in sexual harassment investigations. Alternatively, the University argued that if the requested records are deemed nonexempt per KRS 61.878(1)(a), it would withhold those portions of the records which are excluded from public inspection by KRS 61.878(1)(i) and (j), relating to records which are preliminary in character, such as investigative reports and recommendations not incorporated into final agency action.
The question presented in this appeal is whether Morehead State University properly relied on KRS 61.878(1)(a) in denying Ms. Coldiron access to all sexual harassment complaints and personnel actions against Dr. Michael Harford, and, if the answer to this question is no, whether the University may properly rely on KRS 61.878(1)(i)and (j) in withholding records of a preliminary character relating to those complaints and actions. For the reasons set forth below, and upon the authorities cited, we conclude that the University improperly relied on KRS 61.878(1)(a) in denying Ms. Coldiron's request, but that it may withhold all records which are properly characterized as preliminary per KRS 61.878(1)(i) and (j).
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently 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 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists, supra; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . 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.
OAG 91-41, p. 5.
The University argues that no public interest would be served by disclosure of these records, since no complaints have been filed against Dr. Harford in the course of this semester, and that the privacy interests implicated by disclosure are weighty indeed since they involve “the most intimate and personal features of private lives.” Board of Examiners at 328.
We do not concur. The public's interest in insuring that “public servants are indeed serving the public” does not wane with the passage of time. Board of Examiners at 328. Conversely, “an individual . . . [who] inflicts a tort on his fellow man . . . forfeits his privacy to a certain extent.” Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). In weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, [1] are matters of legitimate public concern which outweigh the privacy rights of the public servant. [2]
Nor is disclosure of such records prohibited by KRS 61.878(1)(i) and (j). In a seminal opinion addressing the applicability for these exceptions to such records, the Kentucky Court of Appeals observed, “The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon.” City of Louisville at 660. Thus, KRS 61.878(1)(i) and (j) notwithstanding, as a rule of general application, the complaint which initiates an investigation by a public agency, the final action taken by the agency relative to the complaint, and any preliminary investigative reports or recommendations adopted by the agency as part of its final action, are public records which must be made available for inspection. City of Louisville, supra; Kentucky State Board of Medical Licensure, supra. However, until final action is taken on the complaint, those documents may be treated as preliminary and exempt under KRS 61.878(1)(i) and (j).
Clearly, sexual harassment complaints are of a uniquely sensitive nature. Conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. Accordingly, we do not believe that the particular complaints at issue in this appeal, and consequent disciplinary actions or decisions to take no action, should be excepted from the “general rule of inspection and its underlying policy of openness for the public good . . . .” Kentucky Board of Examiners at 327.
We therefore conclude that Morehead State University improperly withheld sexual harassment complaints against Dr. Harford, records reflecting final actions taken relative to these complaints, including the decision to take no action, and any records incorporated into those actions. If, however, there are any personnel actions against Dr. Harford which are pending, the University may, in its discretion, withhold all records, including the complaints giving rise to them, which pertain to those ongoing actions until the actions are concluded.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
aps/306
Distributed to:
Madelynn Coldiron
Staff Writer
The Daily Independent
Morehead Bureau
P. O. Box 868
Morehead KY 40351
Michael Seelig
Special Assistant to the President
Morehead State University
201 Howell-McDowell Ad. Bldg.
Morehead KY 40351-1689
[1] In 94-ORD-76, at page 6, this office observed:The fact that [the agency] [may have] concluded that there was no basis for action against the [agency employee] has no bearing on whether . . . 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.
[2] Since Ms. Coldiron has agreed that the names of the complainants, and other identifying information, may be withheld, we are spared debate on this issue.