Request By:
Mark R. Chellgren
Associated Press
The Capitol
Frankfort KY 40601Jenny Whitis
Kentucky Employers' Mutual Insurance
Lexington Financial Center, Suite 900
250 West Main Street
Lexington KY 40507-1714Larry Clevinger
Kentucky Employers' Mutual Insurance
Lexington Financial Center, Suite 900
250 West Main Street
Lexington KY 40507-1714R. Keith Moorman
Brown, Todd & Heyburn PLLC
2700 Lexington Financial Center
Lexington KY 40507-1749
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
In re: Mark R. Chellgren/Kentucky Employers' Mutual Insurance Authority
Open Records Decision
The question presented in these consolidated appeals is whether Kentucky Employers' Mutual Insurance Authority is a public agency for purposes of the Open Records Act, and its records subject to public inspection. On March 14, 1997, and again on March 19, 1997, Associated Press correspondent Mark Chellgren requested access to various records in KEMI's custody. KEMI's human resources director Jenny Whitis denied Mr. Chellgren's first request based on KRS 61.878(1)(a), and KRS 61.878(1)(c). She also indicated that some of the records he had requested do not exist. In response to Mr. Chellgren's second request, KEMI's executive vice-president Larry Clevinger agreed to release certain documents, without waiving KEMI's position that it is not subject to the Open Records Act, in exchange for Mr. Chellgren's agreement "not to pursue any of the other requested documents." It is our opinion that Kentucky Employers' Mutual Insurance Authority is a public agency, as that term is defined at KRS 61.870(1)(b), (f), and (i), and that its records must be made available to the public unless excluded from inspection by one or more of the exceptions codified at KRS 61.878(1)(a) through (1).
KRS 61.870(1)(i) defines the term "public agency" as:
Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof.
Pursuant to KRS 61.870(1)(a), the term public agency includes "every state or local government officer." KEMI is governed by a board of directors whose members are appointed by the Governor, subject to confirmation by the Senate, and therefore falls within the parameters of this definition. KRS 342.807. As a "de jure municipal corporation and political subdivision of the Commonwealth," KEMI is also a public agency as defined in KRS 61.870(1)(b) and (f). KRS 342.803(1). These facts are conclusive. An interpretation of KRS 61.870(1) which does not include KEMI as a public agency:
is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection all records in the custody of public agencies by whatever label they have at the moment. Statutes are to be interpreted with a view to promote their objects and to carry out the intent of the Legislature.
Frankfort Publishing Co., Inc., v Kentucky State University Foundation, Ky., 834 S.W.2d 681, 682 (1992).KRS 446.080. The expansive definition of public agency found at KRS 61.870(1) indicates a legislative intent to facilitate the broadest possible access to public records. This observation is confirmed by the statement of policy found at KRS 61.871, which provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KEMI is a public agency for purposes of the Open Records Act. Access to its records is therefore governed by the Act.
We reject the notion, which KEMI advances, that it is not subject to the Open Records Act because the General Assembly failed to include an express statement to that effect in its enabling statutes. The Open Records Act is applicable to the records of all public agencies, as defined in KRS 61.870(1)(a) through (k), unless those records are specifically excluded from its application. See, for example, KRS 197.025 (relating to correctional facility and inmate records); KRS 154A.040 (relating to lottery corporation records involving trade secrets or the disclosure of which would adversely impact security); KRS 197.510(7) (relating to financial records of private providers of correctional facilities). Just as in Frankfort Publishing Co., Inc. v Kentucky State University Foundation , above at 682, there is "no reasonable basis for excluding from the definition of a public agency" Kentucky Employers' Mutual Insurance Authority. See also, OAG 79-475.
Having concluded that KEMI is a public agency for purposes of the Open Records Act, we shift our analysis to the question whether the records Mr. Chellgren requested, although clearly public records as that term is defined at KRS 61.870(2), are also open to public inspection. Those records are identified as:
1. Personnel files of following people:
2. Personnel files, including exit interviews, of the following former employees:
3. Personnel handbook of the agency, including explanation of pay grades.
4. Documentation of agency's arrangement with Nouveau Travel.
5. Documentation of agency travel arrangements for hotel reservations and car rental reservations.
6. Policy, if any, regarding agency contracts or business arrangements with companies that employ relatives of agency employees.
7. Policy, if any, on purchase of companion air fares by agency employees taking business-related trips.
8. Leases for any and all property occupied by KEMI.
9. Employee roster for KEMI in September 1995 and March 1997.
10. Contract for any public relations or advertising services.
11. Any financial audit, including management report, performed on KEMI since its inception.
12. Any separation agreement or settlement provisions for Jennifer Tomilin.
13. Invoices from Pegasus Travel Agency for work performed for KEMI.
14. Invoices from Nouveau Travel Agency for work performed for KEMI.
15. Any memorandum, notice or other document directing employees of KEMI to use Nouveau Travel Agency for official travel.
16. Personnel files of Roger Clevinger and Robert Mattscheck.
17. Contract with Brown Todd & Heyburn, including billing records of Paul Sullivan for work claimed for payment from KEMI from inception of contract to present.
18. Roster of members of KEMI board of directors.
19. Payment and reimbursement records for all current and former members of KEMI board of directors from KEMI inception to present.
20. Expense reimbursement records for the following individuals for the current fiscal year:
Although KEMI agreed to make available its employee roster for March, 1997, its roster of the members of its Board of Directors, payment and reimbursement records for all current and former members of its Board of Directors, and expense reimbursement records for certain KEMI employees, it denied Mr. Chellgren access to the remaining records on the basis of KRS 61.878(1)(a), KRS 61.878(1)(c), and the attorney client privilege. In addition, KEMI argued that Mr. Chellgren's requests for invoices and personnel files are overly broad, and therefore need not be honored. Finally, KEMI asserted that it cannot satisfy Mr. Chellgren's request for documentation of any arrangement with Nouveau Travel, documents directing employees of KEMI to use Nouveau Travel, documented travel arrangements, a statement of policy regarding business with companies that employ relatives of KEMI employees, policies regarding the purchase of companion air fares, and a September 1995 KEMI employee roster, because these records do not exist. We address each of these arguments as they relate to the disputed records.
KRS 61.878(1)(a)
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. " Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the court reasoned, "may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners , above. Echoing this view, in Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink , above at 828, 829. If then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in what KEMI is doing and how it conducts its affairs. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners , above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed. " KRS 61.871.
With respect to KEMI operational records, including its personnel handbook, leases, contracts for public relations and advertising services, invoices from Pegasus Travel Agency and Nouveau Travel Agency, and documentation of travel arrangements for hotel and car rental reservations, we find that the threshold question, namely whether the records contain information of a personal nature, must be answered negatively. Such information does not "touch[] upon the personal features of private lives," nor is it "generally accepted by society as details in which an individual has at least an expectation of privacy." Zink , above at 829. These records having failed to meet the threshold requirement, we need not analyze the countervailing public interest in disclosure except to note that such disclosure furthers the purpose for which the Open Records Act was enacted, namely to "subject agency action to public scrutiny." Zink , above at 829.
Moreover, KEMI has done little more than cite the exception without adequately explaining its application to the disputed operational records. KRS 61.880(1) mandates that "an agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." In Edmondson v Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Court of Appeals interpreted this language to mean that an agency's custodian of records must "provide particular and detailed information in response to a request for documents." A "limited and perfunctory response," the court concluded, does not "even remotely compl[y] with the requirements of the Act -- much less . . . amount[] to substantial compliance." Edmondson , above at 858. In the absence of a particular and detailed explanation of how KRS 61.878(1)(a) applies to these operational records, the Attorney General is not persuaded that the cited exception authorizes nondisclosure of operational records.
Whether the personnel files which Mr. Chellgren requested are excluded from public inspection by operation of KRS 61.878(1)(a) is a closer question. In an early open records opinion, this office recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment. " OAG 78-133, p. 3. "The private rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. Paraphrasing the court's holding in Board of Education of Fayette County v Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), in OAG 85-88 we stated that "much of information found in . . . personnel folders deals with items and facts of a personal nature and no public interest would be served by complete disclosure. " OAG 85-88, p. 2. In a latter opinion, we summarized our views:
A personnel folder of a public employee, by its very nature, is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection. Rather than a "shotgun" approach or engaging in a . . . fishing expedition, the request should . . . [be] specific as to the kinds of records and documents which are the subject of the request to inspect. " OAG 88-53, p. 3.
Because the personnel files which Mr. Chellgren requested no doubt contain this mixture of exempt and nonexempt records, it is incumbent on him to "specify the particular documents within such files to be inspected." OAG 85-88, p. 3.
With these observations in mind, we note that the Attorney General has consistently held that a public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20; OAG 92-34; 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90. Should Mr. Chellgren resubmit his request for personnel folders, specifically identifying the records he wishes to inspect, both he and KEMI should be guided by these observations.
KEMI's final privacy argument is premised on the existence of confidentiality agreements relating to documents which involve former employees. KEMI does not specifically identify those records or describe the nature of the agreements. As a general rule, however, this office has recognized that a public agency can agree to maintain the confidentiality of public records only as far as the permissive exceptions allow. OAG 83-256, p. 4. Stated alternatively, an agreement to maintain confidentiality cannot be honored if it is inconsistent with the Open Records Act. OAG 88-1; OAG 92-149. This position finds support in a recent Kentucky Supreme Court decision, Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company , No. 96-SC-399-DG (Kentucky Supreme Court 3/27/97). Thus, if the confidentiality agreement to which KEMI refers is found in the separation agreement or settlement provisions relating to Jennifer Tomilin, the agreement cannot be honored. In Lexington-Fayette Urban County Government v. Lexington Herald-Leader the court held that "in balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement . . . is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection. Lexington-Fayette Urban County Government , slip op. at 9. See also, Courier-Journal & Louisville Times v. McDonald, Ky., 524 S.W.2d 633 (1974). KEMI should apply the same analysis to any other document containing a confidentiality clause in determining which of the records Mr. Chellgren requested must be disclosed. KRS 61.878(1)(c)1.
As a second basis for denying Mr. Chellgren access to its records, KEMI relies on KRS 61.878(1)(c)1. That statute excludes from mandatory disclosure:
[R]ecords confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.
By its express terms, this provision is inapplicable to records generated by KEMI as opposed to records confidentially disclosed to KEMI or required by KEMI to be disclosed to it. KRS 61.878(1)(c)1. It is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage. See, for example, Marina Management Services, Inc., v. Commonwealth of Kentucky, Cabinet for Tourism, Ky., 906 S.W.2d 318, 319 (1995) ("These are records of privately owned marine operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations"); Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) ("It does not take a degree in finance to recognize that [information submitted to the Authority in an application for tax credits] concerning the inner workings of a corporation is generally recognized as confidential or proprietary" ).
Operational and financial records, as well as personnel files, created by KEMI in the normal course of business do not fall within the wording of KRS 61.878(1)(c)1. That exemption's protection simply does not extend to the agency's own records. If, on the other hand, KEMI requires a private employer seeking to purchase workers compensation insurance from it to disclose records which are generally recognized as confidential or proprietary, and KEMI can demonstrate that release of those records would permit an unfair commercial advantage to the private employer's competitors, then KEMI can properly rely on KRS 61.878(1)(c)1. Otherwise, this provision has no application. Bearing in mind, once again, that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed, " we find that KEMI improperly relied on this exemption. KRS 61.871.
Attorney client privilege
With respect to Mr. Chellgren's request for KEMI's contract with Brown, Todd & Heyburn, and Paul Sullivan's billing records from the contract's inception to the present, we find that KEMI violated the Open Records Act in denying him access. Although the attorney client privilege, codified at KRE 503, is deemed incorporated into the Act by operation of KRS 61.878(1)(1), the privilege does not extend to contracts and billing records of attorneys working for a public agency. OAG 82-169; OAG 85-91; OAG 92-14; OAG 92-92; 95-ORD-18. Thus, at page 6 of OAG 92-14, we observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for public inspection at the conclusion of pending litigation. We believe that that opinion, coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)[1)] the exempt material should be separated from the non-exempt materials, and the non-exempt materials released for public inspection.
It is upon these precedents that we rely in concluding that the attorney contract and billing records which Mr. Chellgren requested are not excluded from disclosure, subject to the principles articulated in OAG 92-14 and OAG 92-92, copies of which are enclosed and incorporated by reference.
Nonspecific requests
As its final basis for denying Mr. Chellgren access to certain of its records, KEMI argues that his request for the personnel files of various named employees, and his request for invoices from Pegasus Travel Agency and Nouveau Travel Agency, are nonspecific and constitute blanket requests which it is not obligated to honor. We have stated our position on the nonspecificity of Mr. Chellgren's request for personnel files. Because both exempt and nonexempt records are commingled in those files, it is incumbent on him to identify the specific personnel records he wishes to inspect. (See discussion at pages 6 and 7 above.)
We do not believe that the same reasoning applies to travel agency invoices. Since financial records of public agencies are, without any recognized exception, subject to public inspection, Mr. Chellgren is entitled to review all of the invoices. Such a request cannot be characterized as "so nonspecific as to preclude the custodian from determining what records it encompasses, much less whether any or all of the records are exempt. " OAG 91-58, p. 4. Although Mr. Chellgren's requests cover a potentially large number of records, those requests describe, with reasonable particularity, specific documents for a discrete period of time beginning with KEMI's creation in 1994. As noted, those records are typically recognized as subject to inspection. We therefore find that KEMI improperly denied Mr. Chellgren's request for travel agency invoices.
Conclusion
In summary, we find that Kentucky Employers' Mutual Insurance Authority is a public agency, as defined in KRS 61.870(1)(b), (f), and (i), and that its records are public records, as defined in KRS 61.870(2). We do not believe that its operational records, including its personnel handbook, documents reflecting hotel and car rental reservations, leases, contracts for public relations or advertising services, financial audits, travel agency invoices, and contracts and billing records for Brown, Todd & Heyburn, qualify for exemption under KRS 61.878(1)(a). Accordingly, these records must be released. With respect to employee personnel files, we believe that records unrelated to public employment which are found in those files are excluded from public inspection by KRS 61.878(1)(a). Because both exempt and nonexempt records are commingled in those files, we believe it is incumbent on Mr. Chellgren to specifically identify the personnel records he wishes to inspect. We reject KEMI's argument that records involving former employees can be withheld under the terms of confidentiality agreements unless KEMI can demonstrate that the promises of confidentiality are consistent with one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l).
We also reject KEMI's argument that its records are excluded from public inspection by operation of KRS 61.878(1)(c)1. By its own terms, this provision does not extend to records created by KEMI in the ordinary course of business. The disputed records therefore do not satisfy the first of the three requirements set forth in that exception. Finally, we reject KEMI's argument that its attorney contract and billing records are exempt pursuant to KRS 61.878(1)(l) and the attorney client privilege. Consistent with the reasoning articulated in OAG 92-14 and OAG 92-92, which are enclosed, we believe that KEMI is obligated to disclose these records.
KEMI has agreed to release its employee roster for March, 1997, the roster of the members of its board of directors, payment and reimbursement records for current and former members of its board of directors, and expense reimbursement records for the employees identified in Mr. Chellgren's request. KEMI should immediately make arrangements for Mr. Chellgren to inspect these records and the nonexempt records identified above. KEMI obviously cannot make available records which it does not have or which do not exist, such as documents directing its employees to use Nouveau Travel Agency for official travel, written policies on purchase of companion airfares, written policies relating to agency contracts with companies which employ relatives of agency employees, and documents reflecting its arrangements with Nouveau Travel. In the role as a dispute mediator in an open records appeal, the Attorney General is not authorized to conduct an investigation into the nonexistence of these records. OAG 86-35; 93-ORD-51; 94-ORD-140; 97-ORD-17. Although there are occasions when, under the mandate of KRS 61.8715, we refer a records management issue to the Department for Libraries and Archives for further inquiry, we do not believe this appeal warrants such a referral. Apparently, these policies have not been reduced to writing. KEMI's response that these records do not exist was proper and consistent with the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.