Request By:
Kenneth E. Brandenburgh
Commissioner
Kentucky State Police
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
On January 31, 1978 you, by letter, denied the request of Mr. Livingston Taylor, a reporter for the Courier-Journal to inspect all of the documents pertaining to disciplinary action against Captain Kenneth Russell. You sent the Attorney General a copy of your letter as required by KRS 61.880.
The Courier-Journal and Louisville Times Company, through its attorney, Jon L. Fleischaker, has appealed to the Attorney General your denial of access to said documents. Upon consideration of the matter the Attorney General issues the following opinion as to whether the documents were properly denied as required by KRS 61.880(2).
OPINION OF THE ATTORNEY GENERAL
In your letter to Mr. Taylor you state that you are denying inspection of the records under the provisions of KRS 16.140 which provides the statutory procedures for the discipline of Kentucky State Police Officers. You state specifically as follows:
"However, KRS 16.140 provides that if the officer admits the truthfulness of the charges there is no public hearing. Therefore, it is the position of the Bureau of State Police that the matter is protected from public disclosure pursuant to KRS 61.878(1)(a) as public records containing information of a personal nature which constitute a clearly unwarranted invasion of personal privacy. "
It is our opinion that the matter of disciplining a state employee does not come within the exception of personal privacy. Nor do we read KRS 16.140 to allow the Commissioner the authority to keep a disciplinary charge confidential if the employe admits the truthfulness of the charge. The pertinent portion of KRS 16.140 reads as follows:
"The Commissioner, whenever probable cause appears, shall prefer charges against any officer whom he believes to have been guilty of conduct justifying his removal or punishment, in the interst of public order. Within five (5) days after the filing of charges, the Commissioner shall deliver a copy thereof, by registered mail or by certified mail, return receipt requested, to the officer offending. Within five (5) days after the receipt thereof, the officer may demand public hearing, or may admit the truth of the charges in whole or in part. If the officer admits the truthfulness of the charges, the Commissioner shall remove, suspend, reduce in tank or pay the officer so offending, in proportion to the seriousness of the charges."
We do not believe that the admission of the officer of the truthfulness of the charges makes the charges forever confidential. When final action is taken on the charges, the charges should be made available for public inspection.
KRS 61.878(1)(f) reads as follows:
"Records of law enforcement agancies or agencies involved in adminstrative 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. Provided, however that 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."
We believe that the above quoted portion of the Open Records Statute applies to this factual situation. We further believe that even without an Open Record Statute it would be constitutionally unacceptable to allow an administrative officer the prerogative of requiring a subordinate to make a choice between admitting private charges or facing a public hearing. [Kentucky Constitution, Section 2].
If charges are made which are serious enough, if true, to require disciplinary punishment, the public has a right to know what the charges are. When final action has been taken on the charges there is no longer any reason or authority for keeping them confidential.
As to the exception provided by KRS 61.878(1)(a): "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " we believe that this provision applies only to matters entirely unrelated to the performance of public employment.
As to the withholding from public inspection of preliminary memoranda in which opinions were expressed, we agree with you that such matter is exempted under the provision of KRS 61.878(1)(h).
In complaince with the statute we are sending a copy of this opinion to the requester.