Request By:
Mr. Ron Holland
Director
Division of Unemployment Insurance
Department for Employment Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Paul F. Fauri, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request of Mr. Lindsay Hughes to inspect certain records in the custody of your division.
Mr. Hughes filed a request to inspect records in the custody of your division on July 17, 1987. That request was as follows:
"1) The file or other document(s) (i.e. list(ing) computer printouts, etc.) for each or which show(s) all identified Unemployment Insurance claimants since July 1982 whose overpayments arose during the appeals process and who subsequently repaid the Division of Unemployment Insurance in full or in part.
"2) Copies of all adjustment checks or payment record/document issued to or for all of the above identified claimants. "
You replied to Mr. Hughes in a letter dated July 24, 1987. You advised him that his request was being denied pursuant to KRS 61.878(1)(j) which provides that information which is made confidential by an enactment of the General Assembly is not subject to public inspection. Reference was then made to KRS 341.190 which makes records of the division confidential except to public employees in the performance of their duties. Such records contain information which would identify claimants or employing units and are exempt from public inspection.
In his letter of appeal to this office Mr. Fauri maintains that you did not respond to his letter within the statutorily mandated time frame. He also states that you have misconstrued the provisions of KRS 341.190. That statute is not applicable to this particular request to inspect documents as the statute applies only to communications from the employer or the employee to the Cabinet for Human Resources. Mr. Fauri states that the request to inspect does not involve this type of communication but only concerns a list of claimants identified by the agency who repaid overpayments.
The undersigned Assistant Attorney General attempted to contact you by telephone but since you were unavailable, I talked with Mr. Larry Taylor of your staff on August 3, 1987. He advised that the information requested pertained to claims and related to information filed and compiled pursuant to KRS Chapter 341.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part that a public agency, upon a request for records made pursuant to the Open Records Act, shall determine within three working days after the receipt of the request whether to comply with the request and shall notify in writing the person making the request, within the three day period, of its decision.
Since the request to inspect records was presented to your agency on Friday, July 17, 1987, you should have responded in writing to the requesting party by Wednesday, July 22, 1987. Your response, dated July 24, 1987, was, therefore, tardy and this office strongly urges you in the future to respond to requests to inspect documents within the statutorily prescribed time period.
KRS 61.878(1)(j) provides that among those public records which can or should be excluded from public inspection in the absence of a court order authorizing inspection are the following:
"Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 341.190(3), concerning the confidentiality of material acquired by your agency, provides as follows:
"All letters, reports, communications, and other matters, written or oral, from employer or worker, to the secretary for human resources or any of his agents, representatives, or employes, or to the commission, or to any board or official functioning under this chapter, which have been written, sent, or made in connection with the requirements and administration of this chapter, shall be absolutely privileged and shall not be the subject matter or basis for any suit for slander or libel in any court, but no employer or employe, or his representative, testifying before the commission, the secretary for human resources or any duly authorized representative thereof, shall be exempt from punishment for perjury. Information thus obtained shall not be published or be open for public inspection except to public employes in the performance of their duties, in any manner revealing or indicating the employing unit's identity, but any claimant at a hearing before the commission, the secretary for human resources or his duly authorized representative, shall be supplied with information from such records to the extent necessary for the proper presentation of his claim."
Mr. Fauri maintains that the materials he seeks are not the types of documents and records excluded from public inspection by KRS 341.190. He states that what he wants is a list of claimants identified by your agency as those who repaid overpayments.
You and your staff maintain that what he wants is material collected and compiled by your agency relative to its duties and functions concerning the unemployment insurance program and KRS Chapter 341. The material he wants pertains to specific claims and records collected and compiled relative to those claims.
KRS 341.190(3) provides that all letters, reports, communications and other matters to the Cabinet for Human Resources which have been written, sent or made in connection with the requirements and administration of KRS Chapter 341 shall be absolutely privileged. The material sought by the requesting party was obtained and compiled as a result of your agency's duties and responsibilities pursuant to KRS Chapter 341 and in connection with claims filed pursuant to that Chapter. Were it not for your agency's statutory duties and responsibilities the information would not have been compiled by your agency and the information resulting from claims filed under the law would not have been made available to your agency.
It is, therefore, the opinion of the Attorney General that you and your agency acted within the provisions of the Open Records Act in denying the request to inspect records pertaining to claims filed under the provisions of KRS Chapter 341 and material collected and compiled pursuant to your agency's statutorily imposed duties as such information is excluded from public inspection pursuant to KRS 341.190(3) and KRS 61.878(1)(j).
As required by statute a copy of this opinion is being sent to the appealing party, Paul F. Fauri, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).