Request By:
Mr. Darvin Allen
Commissioner
Department for Employment Services
Cabinet for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of September 7, 1989, Mr. Lee A. Jackson has appealed your August 30, 1989 response to his August 22, 1989 request to inspect a "copy of the Department for Employment Services Affirmative Action Goals, Timetables and Actions (sic) Plans."
FINDINGS IN BRIEF
The Department for Employment Services failed to act consistent with provisions of KRS 61.870 to 61.884, in responding to a request to inspect records by indicating information sought was not subject to open record law, and was contained in a document accessible to all staff, rather than by making a determination regarding inspection in keeping with KRS 61.880.
FACTUAL BACKGROUND
Citing Section IV E page 10 and F(3) page 11 of the Commonwealth of Kentucky Affirmative Action Plan 1988, and Section IV page 7 of the Cabinet for Human Resources Affirmative Action Plan dated February 1, 1989 (which call for development of goals, timetables, and action plans), Mr. Jackson asked, by a request addressed to you, dated August 22, 1989, to inspect a copy of "the Department for Employment Services Affirmative Action Goals, Timetables and Actions (sic) Plans."
By letter of August 30, 1989, to Mr. Jackson, you advised him that the Cabinet's legal section had advised your agency that such information is not subject to the open records law. You further indicated the information he sought was included in the Cabinet for Human Resources Plan of Action, and that each local office had a copy of the Department for Employment Services Affirmative Action Plan dated April 24, 1989, "that is accessible to all staff. "
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880 provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General.
In the instant situation the agency did not respond in keeping with the requirements of KRS 61.880, to Mr. Jackson's August 22, 1989 request to inspect records.
The request was to inspect a "copy of the Department For Employment Services Affirmative Action Goals, Timetables, and Actions (sic) Plans." The response was to state that "such information is not subject to the open records law," and to state that the requested information was "included" in the "Human Resources Plan of Action." You also indicated to Mr. Jackson that a copy of the Department for Employment Services Affirmative Action Plan dated April 24, 1989 was accessible to all staff.
I know of no provisions excluding affirmative action records from the purview of Open Records provisions (KRS 61.870 to 61.884).
Further, such a response is not a "determination" in keeping with the terms of KRS 61.880.
Whether there is a semantic problem involved here, I have not been able to determine.
I have not been able to determine whether there is a record (or records) that contain, as expressly and separately identified items, the "Affirmative Action Goals, Timetables and Action Plan" of the Department for Employment Services. It may be that such items are understood by some as being "included in" the Department's Affirmative Action Plan, though not expressly and separately identified by the specific terms set forth in Mr. Jackson's request. If such is the case, this fact should be explained in a proper response in keeping with KRS 61.880.
The copy of the Department for Employment Services Affirmative Action Plan I obtained in an effort to determine if such records existed within the Plan, does not have such items (Goals, Timetables and Action Plan) clearly identified as such. The document sent for my review as the Department for Employment Services Affirmative Action Plan, was accompanied by the Memorandum of Margaret Whittet dated April 24, 1989 regarding such plan. The document consisted of four unnumbered pages, labeled at the top of the first page, "DEPARTMENT FOR EMPLOYMENT SERVICES AFFIRMATIVE ACTION PLAN FOR PY-89-90." The document contained text organized in three columns labeled, respectively, "Assignment" Prime Responsibility" and "Tentative Date." Information under the headings was organized in six Roman-numeraled categories (Top Level, Job Structure, Assignment, Recruitment, Work Environment, Training and Education, and Evaluation). There were no categories expressly labeled "Goals, Timetables and Action Plan."
Mr. Jackson should be promptly notified either that the records he has asked to inspect do not exist, or alternatively that he may inspect records that appear to conform to his request. All records of state agencies, except those of the Courts, are subject to Open Records provisions.
Responses to requests to inspect records of public agencies are to be made made in accordance with KRS 61.880.
Your agency may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Lee A. Jackson.