TO BE PUBLISHED
97-ORD-87
June 3, 1997
In re: Mbibong I. Nchami/Morehead State University
Open Records Decision
The issue in this appeal is whether Morehead State University
properly relied on KRS 61.878(1)(a), (i), (j), and (k) in denying
Mbibong Nchami's requests to inspect records in its custody. Mr.
Nchami, a former University employee, requested copies of various
records relating to his employment, including records relating to
allegations leveled against him and records relating to the
University's decision not to renew his contract. For the reasons
which follow, we find that the University erred in denying Mr.
Nchami access to records relating to him. Despite the fact that
Mr. Nchami is no longer a University employee, we hold that KRS
61.878(3) is controlling.
For purposes of clarity, we briefly summarize Mr. Nchami's
requests and the University's response:
In the closing paragraphs of its response, the University
noted that Mr. Nchami had not complied with KRS 61.872(3) by
precisely describing public records which are readily available
within the agency. Because of the breadth of his request, the
University indicated that it could not comply with the time
constraints of the Open Records Act, but would "follow up
within a week."
In its follow-up letter to Mr. Nchami, the University agreed
to release a copy of the complaint against him, after redacting
information relating to the complainant and third parties, and
the record reflecting the final personnel action taken. With
respect to all remaining records relating to complaints, the
University denied his request, citing KRS 61.878(1)(a), (i), (j),
and (k). In response to Mr. Nchami's request for records relating
to the decision not to renew his contract, the University stated
that a copy of the letter notifying Mr. Nchami of his nonrenewal
had been sent to his attorney, and that all other documents
pertaining to the decision are exempt pursuant to KRS
61.878(1)(i). The University agreed to release his application
for employment, contract for services, and related personnel
action requests, but indicated that there were no documents in
the University's custody representing communications to or from
Clell and Kelly Hunt. It is the University's position that KRS
61.878(3) has no application to Mr. Nchami, and that it is
entitled to invoke any relevant exceptions to authorize
nondisclosure of the requested records because he is no longer a
public employee.
In a subsequent letter, dated April 6, 1997, Mr. Nchami
challenged the University's initial response. In the course of
that letter, he asked for copies of several other records,
including records containing the names, addresses, and phone
numbers of Morehead's board of trustees, a letter from a Morehead
elementary school teacher commenting on his approach to teacher
education, a letter from Kelly Hunt's Supervisor, Alvin
Maddengrider, to Michael Seelig, Affirmative Action office,
contradicting Ms. Hunt's complaint, written testimony of Belva
Sammons, and records of any meetings between Clell Hunt and
Morehead officials. Based on the written record before us, it
appears that the University did not respond to this request.
Resolution of this appeal turns on the construction of KRS
61.878(3), and specifically the question of its intended scope.
It is Morehead's position that KRS 61.878(3) is inapplicable to
Mr. Nchami because he is not a University employee. We do not
agree.
KRS 61.878(3) was amended in 1992, and now 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 administrative
investigations by an agency.
This statute has been referred to as the "exception to
the exceptions" to the Act, and provides public employees
with the right to inspect records relating to them. 93-ORD-19. It
formerly referenced only "state employee[s]," and had
been interpreted by this office as being applicable to state
personnel governed by Chapter 18A of the Kentucky Revised
Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG
91-128; OAG 91-133. It now extends, by its express terms, to all
"public agency employee[s], including university employees,
. . . applicant[s] for employment, or . . . eligible[s] on a
register." When applicable, KRS 61.878(3) overrides all of
the exemptions to public inspection set forth in KRS 61.878(1)
with the exceptions of KRS 61.878(1)(k), pertaining to records or
information the disclosure of which is prohibited by federal law
or regulation, and KRS 61.878(1)(l), pertaining to records or
information the disclosure of which is prohibited, restricted, or
otherwise made confidential by enactment of the General Assembly.
In addition, public agency employees do not have a right to
inspect examinations or documents relating to ongoing criminal or
administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
As noted, by its express terms KRS 61.878(3) extends to public
agency employees, applicants for employment, and eligibles on a
register. Although the provision does not contain a specific
reference to former employees, we believe that its expansive
wording, coupled with the statement of legislative intent
underlying the Open Records Act, codified at KRS 61.871, that
free and open examination of public records is in the public
interest, and the rule of statutory construction, codified at KRS
446.080(1), that all statutes are to be interpreted with a view
to promote their objects and carry out the intent of the
legislature, compel this result. The obvious purpose of the 1992
amendment to KRS 61.878(3) was to broaden the scope of the
provision to insure that all public employees, not just state
employees governed by Chapter 18A of the Kentucky Revised
Statutes, enjoyed an equal right of access to records relating to
them. An interpretation of this provision which does not include
former public employees "is clearly inconsistent with the
natural and harmonious reading of KRS 61.870 considering the
overall purpose of the Kentucky Open Records law." Frankfort
Publishing Co., Inc. v Kentucky State University Foundation, Inc.,
Ky., 834 S.W.2d 681, 682 (1992) citing Kentucky Tax
Commission v Sandman, 300 Ky. 423, 189 S.W.2d 407 (1945).
It is simply inconceivable that the legislature intended to
endow applicants for public employment with a broader right of
access to records relating to them than former public employees.
Former employees clearly have a greater investment in public
service, both professionally and legally, and a corresponding
need to preserve their legal rights and professional reputations
by insuring the accuracy of records relating to them. Former
public employees, whether they voluntarily left public employment
to pursue other careers, were forcibly separated from public
employment, or, after years of service, retired from public
employment, are entitled to know at least as much about records
relating to them in their former public employer's possession as
applicants for public employment. Any other reading of KRS
61.878(3) is inconsistent with the tenor of that provision as
well as the expressed legislative intent and policy of the Act as
a whole.
With these principles in mind, we turn to the specific records
requested by Mr. Nchami and the University's response. It is the
opinion of this office that Morehead improperly relied on KRS
61.878(1)(a), (i), and (j) in denying Mr. Nchami access to all
otherwise exempt records relating to its decision not to renew
his contract, and records relating to complaints about him. To
the extent that such records exist, regardless of whether they
are preliminary in nature or otherwise excluded from general
public access, they must be made available to Mr. Nchami pursuant
to KRS 61.878(3) and the open records decisions cited above. Any
requested records which implicate the federal Buckley Amendment,
20 U.S.C. 1232g, and are properly classified as education records
within the meaning of that statute, may, however, be withheld
pursuant to KRS 61.878(1)(k).
Obviously, the University cannot furnish Mr. Nchami with
records which do not exist. To the extent that the University
advised Mr. Nchami that certain records identified in his request
do not exist, its response was consistent with the Open Records
Act. OAG 88-44. With respect to records heretofore furnished to
the EEOC, KCHR, Alicia Lococco, and William Shouse, we believe
the University is obligated to provide Mr. Nchami with copies of
their records upon prepayment of reasonable copying charges not
to exceed its actual costs and postage charges. KRS 61.874(1);
KRS 61.872(3)(b). This office has repeatedly recognized that a
public agency cannot withhold public records from an applicant
simply because the records may be obtained from another source.
OAG 90-71.
We do not believe that the issues raised by Mr. Nchami's
second letter, dated April 6, are ripe for review pursuant to KRS
61.880(1). Because of its vitriolic tone and wide-ranging
accusations, the University apparently did not treat this letter
as an open records request. Therefore no response was issued.
Consistent with the principles set forth above, the University is
directed to respond to the request for documents in the April 6
letter within three business days of receipt of this open records
decision. If the University denies all or any portion of his
request, Mr. Nchami may initiate a new appeal.
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
#505
Distributed to:
Mbibong I. Nchami
#G-20
201 E. Palestine
Madison TN 37115
John G. Irvin, Jr.
McBrayer, McGinnis, Leslie & Kirkland
Suite 300
163 W. Short Street
Lexington KY 40507
Michael Seelig
Special Assistant to the President
Morehead State University
201 Howell-McDowell Administration Bldg.
Morehead KY 40351