August 28, 1997

In re: Robert Foley/Kentucky State Police

This is an appeal from the Kentucky State Police’s denial of Robert Foley’s May 23, 1997, request for a copy of the investigation conducted by KSP to determine Detective Larry Lewis’s suitability for employment as an officer. The question presented in this appeal is whether KSP properly relied on KRS 61.878(1)(l), incorporating 502 KAR 45:065 Section (5) into the Open Records Act, KRS 61.878(1)(a), and KRS 61.878(1)(h) in denying Mr. Foley’s request. For the reasons which follow, we find that KSP erred in withholding the investigation.

In support of its decision, KSP relies on KRS 61.878(1)(l) and 502 KAR 45:065 Section (5). The latter regulation "establishes a background investigation as a component of the selection process for the State Police." Section (5) states:

Mr. Foley responds that KRS 16.040(4) compels disclosure. That statute provides:

It is KSP’s position that the investigation consists of "interviews, preliminary matters, notes and correspondence . . . [and] is not a final action." Because of their "personal nature and preliminary status," the investigations are excluded from the mandatory disclosure provisions of the Open Records Act. We do not agree.

KRS 16.040(4) and 502 KAR 45:065 Section (5) are clearly in conflict. The statute directs disclosure of the contents of the investigation, with the narrow exception of the identities of witnesses and informants. It specifically references the Open Records Act, declaring that the contents of the investigation are subject to the Act. The regulation prohibits disclosure of "all reports of background investigation," declaring that "information obtained as a result of the background investigation" is confidential. In our view, the statute and the regulation cannot be reconciled.

"Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison’s Sanitarium, Inc., v Department of Health, Ky., 417 SW2d 137, 138 (1967). To be valid, such regulations:

Henry v Parrish, 307 Ky. 559, 211 SW2d 418, 422 (1948). Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them.

If, on the other hand, a regulation "exceeds statutory authority or [is], in some way, . . . repugnant to the statutory scheme," it is invalid. Revenue Cabinet v Joy Technologies, Inc., Ky. App., 838 SW2d 406, 409 (1992); Robertson v Schein, 305 Ky. 528, 204 SW2d 954 (1947); Curtis v Belden Electric Wire & Cable, Ky. App., 760 SW2d 97 (1988). Fundamental to this rule of law is the proposition that "encroachment upon the legislative power would be in direct violation of Sections 27 and 28 of our Constitution." Id. The rule codified at KRS 13A.120(2)(i) which provides that "an administrative body shall not promulgate administrative regulations . . . which modify or vitiate a statute or its intent." Thus, "an administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment." Curtis at 99.

KRS 16.040 was amended in 1996 and the language which appears at subsection (4) added to the existing statute. 502 KAR 45:065 Section (5) was promulgated and took effect prior to the enactment of the statute. The statute directs disclosure of background investigations subject to the statutory exemptions codified at KRS 61.878(1)(a) through (l). The regulation, which mandates absolute confidentiality as to the investigations, modifies and vitiates the terms of the current statute.

In promulgating 502 KAR 45:065 Section (5), KSP has limited the terms of KRS 16.040(4) in a manner which is repugnant to the statutory scheme. Legislative intent "is to be gleaned from the words employed in enacting the statute, rather than surmising what may have been intended but was not expressed." Kentucky Association of Chiropractors, Inc. v Jefferson County Medical Society, Ky., 549 S.W.2d 817, 821 (1977), cited in Revenue Cabinet at 409. The words employed in KRS 16.040(4) demonstrate a legislative intent to open the contents of pre-employment investigations to public scrutiny except for the identities of witnesses and informants. To construe the statute as KSP construes it is to do violence to the legislature’s obvious intent in enacting KRS 16.040(4). The specific reference to the Open Records Act becomes superfluous, and the narrow exception for the identities of witnesses and informants utterly meaningless. Such an exception is clearly unnecessary if reports of background investigations are otherwise confidential. For good or ill, the legislature has directed disclosure of the contents of investigations into an applicant’s suitability for employment as an officer. We therefore find that KSP improperly relied on KRS 61.878(1)(l) and 502 KAR 45:065 Section (5) in denying Mr. Foley access to the contents of Detective Larry Lewis’s background investigation.

We recognize that this holding places KSP in a dilemma vis a vis adherence to KRS 16.040(4) versus adherence to 502 KAR 45:065 Section (5). However, the Attorney General, in resolving an apparent conflict between a statute and regulation, is bound to follow the law as articulated by the General Assembly in a subsequently enacted statute.

This is not to say that KSP cannot withhold portions of the background investigation for which it can articulate a statutory basis for denying access. In a follow-up letter to this office, KSP argues that "the personal mature [sic] and preliminary status of the background investigation makes it exempt under 61:878(1)(a), (h) and (l) [sic]." However, KSP offers virtually no explanation of how these exceptions apply to the records withheld. KRS 61.880(1). We have rejected KSP’s claim that the investigation, in its entirety, is exempt per KRS 61.878(1)(l), incorporating 502 KAR 45:065 Section (5), and reiterate that, in our view, this regulation represents an invalid exercise of KSP’s authority to promulgate administrative regulations "to assure the fitness of candidates for employment," insofar as the regulation conflicts with KRS 16.040(4). We turn now to the other exceptions which KSP cites.

Relying on KRS 61.878(1)(a), KSP asserts that information contained in the investigations is of a personal nature. Although KRS 61.878(1)(a) requires a showing that the requested records contain information of a personal nature as a precondition to its proper invocation, KSP fails to state, in even general terms, in what way the information is personal. Certainly, information pertaining to the applicant’s health, marital status, and personal habits can be characterized as information of a personal nature. It remains to be seen whether the public’s interest in disclosure of such information outweighs the applicant’s privacy interest in the information. Without a "brief explanation of how the exception applies to the record withheld," this office cannot determine the propriety of KSP’s invocation of KRS 61.878(1)(a). Accordingly, we find that KSP failed to meet its burden of proof in denying Mr. Foley access to Detective Lewis’s background investigation on the basis of personal privacy. KRS 61.880(2)(c).

Similarly, KSP maintains that the investigation, in its entirety, is exempt per KRS 61.878(1)(i), incorrectly cited as KRS 61.878(1)(h), as "a predecisional document not incorporated into final agency action." That exception excludes from the mandatory disclosure provisions of the Open Records Act "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." No doubt, portions of the investigation, such as investigator’s notes and observations, may properly be so characterized. We reject, however, the notion that the entire record constituting the background investigation is preliminary. Title 502, Chapter 45 of the Kentucky Administrative Regulations establishes a multi-part test for candidate selection. This includes a written examination, a content based task test, an oral interview, and a background investigation. Perforce the investigation is used "to determine an applicant’s suitability for employment as an officer," and is adopted by KSP, at least in part, as the basis of its final decision to make an offer of employment. To this extent, "the preliminary characterization is lost, as is the exempt status." Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 956 (1983), citing City of Louisville v Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982).

Because KSP failed to meet its burden of proof relative to invocation of KRS 61.878(1)(i), as well as KRS 61.878(1)(a), we have no alternative but to conclude that its denial of Mr. Foley’s request violated the Open Records Act, and that it must furnish him with a copy of Detective Lewis’s background investigation upon receipt of prepaid copying and postage charges.

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

#682

Distributed to:

Robert Foley #77 421

Kentucky State Penitentiary

P. O. Box 128

Eddyville KY 42038-0128

Diane H. Smith

Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort KY 40601