NOT TO BE PUBLISHED

In re: Mark Hebert/City of Pioneer Village

This is an appeal from the City of Pioneer Village's partial denial of WHAS-TV reporter Mark Hebert's request to inspect records pertaining to the resignation of city clerk Patricia Hayse. The question presented in the appeal is whether the city properly relied on KRS 61.878(1)(a), improperly referred to as KRS 61.878(1), and KRS 61.878(1)(h), improperly referred to as KRS 61.878(1)(g), in partially denying Mr. Hebert's request. For the reasons which follow, we conclude that the city improperly relied on the cited exceptions, and that its refusal to disclose these records to Mr. Hebert in their entirety constituted a violation of the Open Records Act.

On June 24, 1997, Mr. Hebert requested access to Ms. Hayse's letter of resignation and her written complaint to former mayor James Welker. On     June 26, the city released a redacted copy of the letter of resignation, but refused to release the written complaint. In support of its denial, the city cited KRS 61.878(1)(a) and (h), advising Mr. Hebert as follows:

The excepted portions of the resignation letter and the entire five (5) page document contain a statement of a personal nature relating to the author. Further, they contain statements concerning alleged actions by certain named individuals both inside and outside of the City of Pioneer Village. Further, some of the issues in the five (5) page document are currently being addressed in a present investigation.

This appeal followed.

In his letter of appeal, Mr. Hebert references previous opinions of this office directing disclosure of personnel files, including letters of resignation, as well as complaints involving public employee misconduct. He notes that Ms. Hayse herself urged him to obtain a copy of her complaint, from which he concludes that she is not concerned about an invasion of her privacy.

In a supplemental response, city attorney Norman R. Lemme elaborated on the city's position. He explained that the letter and complaint:

contain names of individuals (some of whom who [sic] have no present connection with the city) and statements regarding these individuals which, if not true, may constitute liable per se [sic].

Mr. Lemme suggested that Mr. Hebert obtain copies of the records from Ms. Hayse to avoid publication of "defamatory statements about individuals . . . under the possible protection that all that is being done is quoting 'from a public record.'" In closing, Mr. Lemme noted that "some of the issues raised in the complaint are currently under investigation by the Attorney General," as well as the subject of an internal investigation.

Pursuant to KRS 61.880(2)(c), Mr. Lemme later furnished this office with copies of the disputed records to facilitate our review. At that time, he advised that the subject of Ms. Hayse's complaint, a city employee, "was suspended for one week without pay by former Mayor Welker." He did not indicate when this disciplinary action was imposed, but noted that the letter of reprimand is missing.

As Mr. Hebert correctly notes, this office has traditionally taken the position that letters of resignation submitted by public employees are not excluded from the mandatory disclosure provisions of the Open Records Act by KRS 61.878(1)(a). See, e.g., OAG 81-345; OAG 85-136; 94-ORD-108. At page 29 of 94-ORD-108, this office observed:

Common to these opinions is the recognition that the privacy exemption applies only to matters which are unrelated to public business. Matters relating to the employment of a public employee are of considerable public interest. Matters relating to the management and operation of a public agency which prompted a public employee to tender his resignation are of the greatest public interest.

In a footnote appearing on the same page of that decision, we further recognized:

This is not to say that privacy concerns relative to resignation letters containing references to, for example, personal illness or loss are not to be accorded considerable weight.

Release of such information, we concluded, would not necessarily serve the public interest in public agency oversight.

We have examined an unredacted copy of the letter of resignation submitted by Patricia Hayse. While we cannot disclose its content, we can describe, in general terms, the nature of the material redacted. Ms. Hayse states that her health has suffered as a consequence of the actions of a fellow employee of the City of Pioneer Village against whom no disciplinary action has been taken, and that she is unable to continue to perform her duties under these conditions. Clearly, this letter contains information of a personal nature. It refers to Ms. Hayse's health which is "generally accepted by society as [a subject] in which an individual has at least some expectation of privacy." Zink v Commonwealth of Kentucky, Ky. App., 902 SW 2d 825, 828 (1994). Nevertheless, it appears that Ms. Hayse has discussed this matter with representatives of the media, and indeed has encouraged those representatives to obtain a copy of her letter of resignation. This would suggest that she does not object to the release of this personal information, or that she is jealously guarding her right of privacy.

We do not attach great weight to the privacy interests of the public employees and officials identified in Ms. Hayse's resignation letter. Employee misconduct, confirmed by subsequent disciplinary action, and official reaction thereto are not accepted by society as details in which an individual has a reasonable expectation of privacy. Such matters are clearly related to public business, and thus cannot be cloaked in secrecy, though disclosure "may cause inconvenience or embarrassment to public officials or others." KRS 61.871.

Against this reduced privacy interest we must weigh the public's interest in disclosure. Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky. 826 SW 2d 324, 328 (1992). The only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 829. As noted, "matters relating to the management and operation of a public agency which prompted a public employee to tender his resignation are of the greatest public interest." 94-ORD-108, p. 29.

It is the opinion of this office that the public's interest in disclosure of Ms. Hayse's resignation letter, in its entirety, outweighs any expectation of privacy she may have in the letter. This is particularly true in view of the fact that she has discussed this matter with the press, and in view of the seriousness of the allegations made and subsequently confirmed by the imposition of disciplinary action. Disclosure of an unredacted copy of the letter will promote the public's interest in monitoring the conduct of City of Pioneer Village employees and officials with minimal intrusion into Ms. Hayse's personal privacy.

With respect to Ms. Hayse's written complaint to the mayor of the City of Pioneer Village, which the city withheld in its entirety, we reach the same conclusion. The courts and this office have consistently recognized that "disciplinary action 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 SW2d 658 (1983); Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 SW2d 953 (1983); Kentucky Board of Examiners of Psychologists, supra; 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; OAG 91-45; OAG 91-62; OAG 91-90; OAG 92-34; 94-ORD-27; 95-ORD-47. In a seminal opinion, 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. Elaborating on this view, in OAG 91-41 this office held:

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.

Thus, 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."

Based on the authorities cited, we reject the City of Pioneer Village's reliance on KRS 61.878(1)(a). As noted, we attach little weight to the privacy interests of the employee whose misconduct resulted in disciplinary action, or the officials who responded thereto. Ms. Hayse has effectively surrendered whatever privacy interest she might have by discussing this matter with the press and encouraging the press to obtain a copy of her complaint. Conversely, we attach great weight to the public's right to know that the city is "promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct." 94-ORD-27, p. 5. Given Ms. Hayse's de minimus privacy interest, and the strongly substantiated public interest in public employee misconduct, we find that disclosure of the complaint does not constitute a clearly unwarranted invasion of personal privacy.

We also reject the city's reliance on KRS 61.878(1)(h). That exception excludes from public inspection:

Records 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 of the information 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . [.] The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.

In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Once enforcement action has been taken, or a decision is made to take no action, the protections afforded by KRS 61.878(1)(h) expire. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.

The incident giving rise to Ms. Hayse's complaint was concluded by the imposition of a one week suspension without pay on the offending employee. With respect to this matter, enforcement action is completed, and the protections afforded by KRS 61.878(1)(h) have expired. With respect to any "internal investigation" or "investigation by the Attorney General," the city has failed to demonstrate that disclosure of the information contained in the complaint would impede or otherwise jeopardize these ongoing investigations.

Denial of an open records request must be articulated in terms of the requirements of the statute. The agency thus has the burden of justifying the withholding of a record by reference to the appropriate exception, and by briefly explaining how it applies to the record withheld. KRS 61.880(1); KRS 61.880(2)(c); KRS 61.880(2). Denial of a request for public records under KRS 61.878(1)(h) must be sustained by proof that the public agency which received the request is a law enforcement agency or an agency involved in administrative adjudication, that the disputed records were compiled in the process of detecting and investigating statutory or regulatory violations, and that the disclosure of the records 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. See also, 92-ORD-1613; 94-ORD-35; 94-ORD-53. The City of Pioneer Village having failed to meet its burden of proof with respect to the last of these criteria, we cannot approve the nondisclosure of Ms. Hayse's complaint on this basis.

The City expresses great concern about the publication of a complaint against a public employee, whether baseless or grounded in fact, and the potential harm to innocent individuals such publication might cause. As an alternative to disclosure of the records by means of the Open Records Act, the City proposes that Ms. Hayse provide Mr. Hebert with her resignation letter and complaint. In our view, this proposal and the concerns upon which it is based miss the mark. An individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly, and the public employer more likely to promptly, responsibly, and thoroughly respond if the entire process is exposed to light of public scrutiny. "In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners at 328.

Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action will evidence whether the public agency faithfully discharged its duties. The City of Pioneer Village can take some comfort in knowing that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. Applying this case specific approach to the facts before us, we conclude that disclosure of Ms. Hayse's resignation letter and complaint, in their entirety, will serve the greater public good.

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

#705

Distributed to:

Mark Hebert

WHAS-TV

P. O. Box 1100

Louisville KY 40201

Norman R. Lemme

Attorney for City of Pioneer Village

Lemme & Conway

P. O. Box 770

Shepherdsville KY 40165-0770