Request By:
Mr. Michael McIntyre,
Executive Director
Lexington-Fayette Urban County Human Rights Commission
162 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of March 31, 1989, Mr. Richard C. Stephenson, Esq., has appealed what he indicated was the failure of the Lexington-Fayette Urban County Human Rights Commission to respond as required by KRS 61.880, to a request, under Open Records provisions, to inspect certain of its records.
FINDINGS IN BRIEF
Where the Lexington-Fayette Urban County Human Rights Commission failed to make a response in accordance with KRS 61.880, to a request to inspect certain of its records, it failed to act consistent with provisions of KRS 61.870 to 61.884.
FACTUAL BACKGROUND
By letters of February 28, 1989, Mr. Richard C. Stephenson, on behalf of the Trane Company, asked for a copy of the entire contents of the investigative files compiled by the investigative staff [of the Lexington-Fayette Urban County Human Rights Commission] in connection with the cases of Lewis H. Weathers (HRC No. 08-87-0795, EEOC No. 241-87-0795), Chester Lee Richardson, III (HRC No. 05-87-154, EEOC No. 241-87-0744) and Edward Prentice (HRC No. 08-86-194, EEOC No. 016-86-1037) (all versus the Trane Company).
A March 3, 1989 letter of the Commission's then Acting Executive Director, Charles E. Powell, indicates the requests are granted "in accordance with enclosed OAG, KRS and EEOC Decisions and opinions, and statutes."
In follow-up correspondence dated March 15, 1989, Mr. Larry A. Sykes, Esq., sought, in substance to determine the status of the requests regarding the above cited cases. Sykes indicated his firm was unable to determine whether your agency had agreed to permit copying of the entire contents of the files regarding the cases in question.
In still further correspondence, Mr. Sykes, by letter dated March 21, 1989, called attention to OAG 89-18, and indicated that KRS 61.878(f) (sic) would not be a proper basis for withholding inspection of the files in question.
By letter of March 23, 1989, Mr. Powell wrote to Mr. Sykes in response to the March 15 and 21 letters. Powell indicated the Lexington-Fayette Urban County Human Rights Commission did not have jurisdiction in the cases in question, and that they trusted future requests for records would be directed to the General Counsel of the U.S. Equal Employment Opportunity Commission.
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(1) 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 March 3, 1989 response of the Lexington-Fayette Urban County Human Rights Commission, to the February 28, 1989 request (supra), was not in accordance with the requirements of KRS 61.880. There was no specification of particular exceptions from among those in KRS 61.878, relied upon in the apparent partial denial. The response, while stating the request is granted, conditions such grant upon general citations to ". . . enclosed OAG, KRS and EEOC Decisions and opinions and statutes." Such a response is not in accordance with KRS 61.880. Accordingly, the agency did not act consistent with provisions of KRS 61.870 to 61.884.
The Lexington-Fayette Urban County Human Rights Commission should promptly advise Mr. Stephenson, in writing, when the records in question may be inspected. If any records are withheld from inspection, such withholding must be explained in a manner substantially consistent with KRS 61.880(1). There must be a specification of records withheld, together with a citation of the specific exception, from among those in KRS 61.878, relied upon in denying inspection. There must also be a brief explanation of how an exception relied upon relates to particular records withheld. A copy of any denial should be forwarded to the Attorney General's Office.
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 Richard C. Stephenson, Esq.