Request By:
Mr. Stephen M. Levinson
Hearing Examiner
Lexington Fayette Urban County
Human Rights Commission
162 East Main Street, Suite 226
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
James H. Stock, Jr., Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various records. The only documents made available to this office are copies of Mr. Stock's letter of July 21, 1988, to Mr. Charles E. Powell, Mr. Stock's letter of July 28, 1988, to Mr. Powell, your letter of August 17, 1988, to Mr. Stock and Mr. Stock's letter of appeal to this office, all of which were furnished by Mr. Stock. You apparently did not send a copy of your letter of August 17, 1988, to this office as required by KRS 61.880(2).
Mr. Stock's letter of July 21, 1988, requested that he be furnished with a copy of the complete investigatory file of the local Human Rights Commission relative to its investigation of a particular matter. His letter of July 28, 1988, acknowledged that he received various documents relating to the case with which he was concerned but he stated that he wanted "to obtain the complete commission investigative file in this matter."
In your letter of August 17, 1988, you advised Mr. Stock in part as follows:
". . . I have spoken with Mr. Powell, and reviewed the process used in purging this particular file and forwarding all appropriate documents to you. The Lexington Human Rights Commission, as all '706' agencies, purges its files in accordance with both EEOC's FOIA regulations (29 C.F.R. 1610) and those sections of the EEOC Compliance Manual referring to disclosure of information in open Title VII case files. In addition, all applicable provisions of the Kentucky Open Records Act are taken into account. Please refer to the Compliance Manual, the FOIA regulations, and the Kentucky Open Records Act [Sections 61.878(f) and (i)] . . . ."
In his letter of appeal to this office Mr. Stock states that he is involved in a hearing relative to the investigative case file to which he is seeking complete access. He requests that this office look into the matter. "Since the case has proceeded to the stage of 'litigation' by the Agency against my client, and since the material thus far disclosed contains not a scintilla of evidence of age discrimination, I respectfully request a review of the Agency's entire file."
OPINION OF THE ATTORNEY GENERAL
In OAG 84-376, copy enclosed, we dealt with a city-county human rights commission in regard to the applicability of the Open Records Act (KRS 61.870 to KRS 61.884) to its activities and functions. We concluded in part that a city-county human rights commission is a "public agency" as the term is defined in KRS 61.870(1) and, therefore, subject to the terms and provisions of the Open Records Act. KRS 61.880(2) requires that a copy of the written response denying inspection of a public record, in whole or in part, be forwarded immediately by the agency to the Attorney General. We would expect your agency to comply with this provision in its future responses to requests submitted under the Open Records Act.
The role of the Attorney General relative to appeals under the Open Records Act is set forth in KRS 61.880(2). This office is to determine whether the public agency acted consistent with the provisions of the Open Records Act. Whether there is sufficient evidence to support the agency's allegations of wrongdoing is a separate issue to be resolved in another forum and has no bearing upon a request for public records under the Open Records Act.
It appears from the limited facts available to us that there is a case pending before the Lexington-Fayette Urban County Human Rights Commission. Mr. Stock represents the respondent in that case. He has requested the complete investigative file as it pertains to his client. Your denial is based on EEOC regulations and KRS 61.878(f) and (i).
In our opinion your interpretation of EEOC regulations is incorrect. The federal courts have consistently held that EEOC regulations do not prohibit that agency from disclosing information to the parties involved. See, for example, EEOC v. Associated Dry Goods Corp., 101 S. Ct. 817 (1981), EEOC v. University of Pittsburg, 487 F.Supp., 1071 (W.D. Pa. 1980). Thus, KRS 61.878(1)(i) would not apply.
We also do not believe that KRS 61.878(1)(f) applies since the administrative adjudication has commenced. The statute refers to a prospective action; that is, certain information may be withheld prior to the decision to take some action. Here, a decision was apparently made to proceed to an administrative hearing. Therefore, the exemption, even if applicable, would end. Furthermore, there has been no showing that disclosure of any of the withheld information would harm the agency.
Consequently, it is our opinion that the agency's denial of the request to inspect the agency's investigative file was improper.
As required by statute a copy of this opinion is being mailed to the appealing party, James H. Stock, Jr., Esq. You have the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.