Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Commission on Human Rights violated the Open Records Act in denying Bernard J. Blau's request to inspect all records submitted by American Legion Post # 4 to substantiate the fact that it employs less than eight people and is therefore not subject to the Commission's jurisdiction. For the reasons that follow, we find that the Commission properly relied on KRS 344.250(6) in denying Mr. Blau's request.
In a response dated January 4, 1999, the Commission notified Mr. Blau that his request could not be honored inasmuch as "the requested information . . . is considered confidential due to . . . KRS 344.250(6)." 1 That statue provides:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under the chapter.
Mr. Blau questioned the Commission's response, noting that he represents the complainant, Terry Craig, in her complaint against the American Legion Post. The Commission recently dismissed Ms. Craig's complaint on jurisdictional grounds. Since the basis for the dismissal of her complaint was the fact that the Post employs fewer than eight people, Mr. Blau argued that he was entitled to inspect records submitted by the Post which substantiate that fact. The matter is currently before the Commission on an application for reconsideration.
Shortly after Mr. Blau initiated this open records appeal, the Commission supplemented its response by means of a letter to this office. The Commission explained that in response to Ms. Craig's complaint, the respondent American Legion Post # 4:
supplied copies of its Quarterly Unemployment Wage and Tax Reports filed with the State of Kentucky for all periods relevant to Complainant's charge, e.g., all four quarters of 1996 and 1997, and the first quarter of 1998, along with an affidavit verifying the accuracy of the records. These tax returns indicated that at all times relevant to Complainant's charge, Respondent had fewer than eight employees, the requisite number to bring the matter within the jurisdiction of the Kentucky Commission on Human Rights ("KCHR").
The Commission reaffirmed its view that KRS 344.250(6) prohibits disclosure of the tax returns because "they are confidential and proprietary records of the Respondent. . . ." 2
In OAG 80-148, this office construed the specific provision upon which the Commission relies in denying Mr. Blau's request. Applying rules of statutory construction, we concluded that:
Unless a proceeding has first been instituted under KRS Chapter 344, all information obtained by the Commission remains privileged. In such a case, the Commission must refuse to disclose such information without the person's consent unless ordered to do so by a court of competent jurisdiction.
OAG 80-148, p. 2. We amplified upon this view in subsequent opinions, noting, in OAG 84-376, that "if the proceeding is at the level dealt with in KRS 344.200 and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection." See also OAG 85-5 (modified on other grounds in OAG 88-55); 98-ORD-186; 98-ORD-192.
Clearly, the records which Mr. Blau requested contain "information obtained by the Commission pursuant to its authority under [KRS 344.250]" to conduct investigations of complaints and inspect documents which are relevant to those complaints. KRS 344.250(1). Accordingly, the Commission is prohibited from making the information public without the consent of the American Legion Post "except as reasonably necessary to the conduct of proceedings under [Chapter 344]." KRS 344.250(6). 3 Although we acknowledge the legitimacy of Mr. Blau's concern that he cannot adequately respond to the Post's representations that it employs less than eight individuals if he is denied an opportunity to inspect the records submitted to substantiate this position, we believe that it is within the discretion of the Commission to determine when disclosure is "reasonably necessary to the conduct of a proceeding. . . ." KRS 344.250(6). Absent a clear abuse of this discretion, the Attorney General must defer to the Commission's interpretation and application of this provision. Because Ms. Craig's complaint was dismissed on jurisdictional grounds, we believe that the Commission properly exercised its discretion in determining that the disputed document was not reasonably necessary to the conduct of a proceeding. We therefore affirm the decision of the Kentucky Commission on Human Rights denying Mr. Blau's request.
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.
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