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 Western Kentucky University properly relied on KRS 61.878(1)(a), (i), and (j) in denying Daily News reporter Jason Riley's January 12, 1999, request for records relating to Wayne Jones, director of Western Kentucky University's Glasgow Extended Campus. For the reasons that follow, we find that the University's reliance on the cited exceptions was partially misplaced, and that it improperly denied Mr. Riley access to some of the records he requested.
Mr. Riley requested copies of "the portions of Jones' [sic] personnel file that relate to any disciplinary action considered or taken including informal reprimands, a copy of his resignation, copies of any complaints made about him to the university and any documents revealing results of investigations of those complaints and any documents gathered during those investigations." In addition, Mr. Riley requested copies of "the minutes of any meeting of any committee or other university body which has considered complaints against or disciplinary action against Jones [and reports submitted to or generated by such committee]."
In a lengthy response dated January 15, 1999, Deborah T. Wilkins, University counsel, denied Mr. Riley's request. Relying on KRS 61.878(1)(a), Ms. Wilkins argued that "records contained in an individual employee's personnel file, including any records pertaining to complaints made or disciplinary action taken against the employee are confidential, and disclosure of same would constitute an unwarranted invasion of the individual employee's right of privacy. " On this basis, she denied him access to "documents that might relate to disciplinary action considered or taken, informal reprimands, circumstances of his resignation, documentation of complaints, if any, made about him to the University; investigation documents, if any; and any documents that might relate to an investigation." Ms. Wilkins emphasized that this document description was "illustrative" only, and should not be construed as an admission that Ms. Jones's personnel file contained any of these documents.
Ms. Wilkins also relied on KRS 61.878(1)(i) and (j), incorrectly identified as KRS 61.878(1)(h) and (i), in denying Mr. Riley's request. She explained:
It is the University's position that notes, correspondence, and other documentation related to any internal investigation, including an investigation of alleged sexual harassment, are exempt under both provisions. For this reason, the University is denying access to documentation gathered during or in any way relating to such investigations, including minutes of any meeting of any internal investigatory committee or other University body, and any internal reports or memoranda generated by or submitted to any committee or internal body. Any documentation of this nature would constitute preliminary drafts, notes, and correspondence with private individuals, preliminary memoranda in which opinions are expressed or policies formulated or recommended, and would not be intended to give notice of any final agency action.
With respect to his request for minutes of committee meetings at which complaints against Mr. Jones were considered, Ms. Wilkins noted that such committees are convened to consider a particular grievance against an individual employee, and their "deliberations and recommendations are required, by policy, to be confidential. ..." The committees, she concluded, operate in an advisory capacity and are "not empowered or authorized to take any 'final agency action. '" Ms. Wilkins neither confirmed nor denied that a committee was ever convened to consider the allegations against Mr. Jones.
In closing, Ms. Wilkins commented:
The University is sensitive to the privacy rights of both the complainant and the accused, which are necessarily implicated in such an investigation. Protecting the privacy rights of the individuals is recognized and required by the law, and also serves the dual purpose of (1) encouraging individuals who feel they have been the victim of sexual harassment to come forward with their concerns without fear of public disclosure of personal information, exposure or embarrassment, and (2) protecting the privacy rights of the accused in a grievance, who may be entirely innocent of the charges brought against him/her. Finally, assuming the grievance is found to be true, the consequences, under University policy, implicate internal disciplinary action against the accused, an action which is not subject to "public access."
In the University's view, the public's interest would be better served by handling complaints of sexual harassment "internally and confidentially."
On January 27, 1999, Mr. Riley submitted an amended request in which he asked that the University reconsider its position. Acknowledging the necessity of redacting the complainant's names to protect their privacy, Mr. Riley nevertheless argued that "it is the public's right to monitor a public agency's performance of its duties? [and] we can only do this by looking at how the employees of public agencies, especially those who directly control a university's satellite campus, do their job." He expressed the view that, at a minimum, the public was entitled to inspect records of disciplinary action taken against Mr. Jones, Mr. Jones's letter of resignation, and correspondence in which Mr. Jones was asked to resign or threatened with dismissal, termination, or a change in status and duties. Mr. Riley supplemented his original request by asking that he be afforded access to "contracts, payment and duty agreements, or severance agreements made between Jones and the university or any of its agents ? since Jan. 1, 1998."
Shortly thereafter, Ms. Wilkins responded on behalf of the Western Kentucky University. Again she invoked KRS 61.878(1)(a), (i), and (j) to support the University's denial of Mr. Riley's request, reiterating that this denial "should not be construed or interpreted to indicate that such documentation even exists or is contained in Jones' [sic] file." Ms. Wilkins reminded Mr. Riley that the University is constrained to insure the confidentiality of these records as "a matter of law, both state and federal." This appeal followed.
In a follow-up letter to this office, dated March 3, 1999, Ms. Wilkins elaborated on the University's position. She cited City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982), for the proposition that "investigative files in the Police Department's Internal Affairs Unit, which were compiled as a result of citizen complaints against a particular officer, were protected under subsections (1)[(i)] as 'preliminary materials'" since the IAU was a mere fact-finder, and the chief of police had not adopted its recommendations as part of his final action. "Assuming for the sake of argument that records pertaining to internal complaints and/or internal investigations exist pertaining to Jones," Ms. Wilkins asserted, "such records would be exempt from inspection under [ City of Louisville and Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992)] and previous AG opinions." She explained:
Jones submitted his resignation to the University. The University's Board of Regents did not "take final action" on, "adopt," or rely on any records of an internal investigative committee. No disciplinary action was taken against Jones by the University prior to his resignation. Any documents, assuming they exist, would remain preliminary, internal documents consisting of opinions, and are thus exempt from inspection, particularly where said documents have not been incorporated into or adopted by the agency in any formal agency action.
It is further the position of the University that the resignation letter of an individual employee is likewise exempt from inspection under the foregoing provisions. Dr. Jones was employed in an "at will" status, without a contract of employment. When Jones submitted his resignation, no action was required of, or could have been taken, by the University in response to this resignation. While it could be said that the University "accepted" the resignation by virtue of it having been delivered to it by Jones, this is a matter of semantics. The University did not respond to or "accept" the resignation.
KRS 164.365 provides that the governing board of a university shall have authority for "appointments, qualifications, salaries, and compensation...." Neither of these statutes requires or authorizes a governing board to "accept" or "approve" a resignation . Thus, the University could not have "refused" Jones' resignation as an "at will" employee, nor could it have "forced" his continued employment should he choose to resign. Therefore, a resignation letter written by an employee does not evidence or become a "final agency action. ," Indeed, a resignation letter from an "at will" employee is a textbook example of correspondence with private individuals that is not intended to give notice of any final agency action.
For comparison, had the University terminated or disciplined Dr. Jones, which it did not, then that termination would have constituted an "agency action" on its part; that correspondence could arguably be subject to the Open Records laws.
Ms. Wilkins also expanded on the University's argument that the requested records are excluded from inspection by operation of KRS 61.878(1)(a). She noted that the University's Sexual Harassment Policy "provides that complaints will be kept confidential ..., and that the complainant's identity will be disclosed only to the accused and those persons involved in the investigation process that 'need to know.'" Accordingly, Ms. Wilkins argued, these complainants have an expectation of privacy in their complaints and other documents related thereto. Because the complainants here, "assuming they exist," have not pursued civil action against Mr. Jones, it is clear in the University's view that they desire confidentiality.
Conversely, Ms. Wilkins asserted, the public's interest would not be served by a ruling that the records must be disclosed in view of "the 'chilling effect' such a ruling would create, and the risk of further harassment, embarrassment and humiliation of such disclosure. " She urged this office to consider the particular facts of this case, concluding that if a complaint, or complaints, had been filed against Mr. Jones, "disclosure of complaint documents ? would easily permit identification of [the complainants]," since the Glasgow Extended Campus is a small facility and there is no meaningful way to protect their privacy. Although we are "mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity,? and that there is a ? public interest in personal privacy, here strongly substantiated, " we nevertheless conclude that the University erred in withholding certain of the records relating to Mr. Jones. Board of Examiners at 328.
Consistent with its sexual harassment policy, the University has exercised considerable circumspection in an attempt to shield the complainant and Mr. Jones from public scrutiny. Our duty, however, arises under KRS 61.880(2), and we cannot give deference to the University's policies unless those policies are clearly supported by the Open Records Law. See, e.g., OAG 82-435, p. 2 ("in enacting the Open Records Law, the General Assembly has preempted the field of inspection of public records [and an agency cannot] make records confidential or exempt form public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878"); OAG 82-518; 92-ORD-1136; 96-ORD-55. In order to discharge our duty to assess the propriety of the University's response to Mr. Riley's request we are obliged to state, at the outset, that the record before us reveals:
. that Mr. Jones was the subject of one or more complaints of sexual harassment and a formal complaint issued;
. that an investigation was launched into the complaints and Mr. Jones was reprimanded for his conduct;
. that an internal review committee was appointed to consider resolution of the sexual harassment complaint(s) against Mr. Jones;
. that at the conclusion of the hearing, the committee recommended Mr. Jones's termination;
. and that before the University's president had an opportunity to act on the committee's recommendation, Mr. Jones submitted a letter of resignation.
It is against this factual background that we assess the University's response.
The University maintains that as "as matter of law, both state and federal," it is required to maintain the confidentiality of records relating to sexual harassment complaints. We do not agree. In 98-ORD-45, this office engaged in a lengthy analysis of the question whether an agency may rely on KRS 61.878(1)(a) in withholding records relating to sexual harassment complaints. We believe that that decision, a copy of which is attached hereto and incorporated by reference, is partially dispositive of this appeal. Salient portions of that decision are quoted below:
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of misconduct, in various factual contexts? We generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. ? This view is premised on the notion that:
OAG 91-41, p. 5.
With specific reference to records relating to allegations of sexual harassment, we have stated:
96-ORD-86, p. 3, 4. Recognizing that sexual harassment complaints "are of a uniquely sensitive nature," we nevertheless concluded that "conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. " 96-ORD-86, p. 4.
The fact that the [agency] may have ultimately concluded that there is no basis for action against an individual employee has no bearing on whether these records must be released. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] ..., if the entire process is exposed to the light of public scrutiny. " 97-ORD-121, p. 7.
This is not to say that individual notations appearing on those records may not be withheld on the basis of KRS 61.078(1)(a). The Attorney General has recognized that the identity of a complainant, and personally identifiable information, can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure, as where the complainant requests anonymity or could reasonably expect confidentiality. The [agency] cannot adopt a policy of blanket nondisclosure relative to this or any other piece of information appearing in these records.
98-ORD-45, p. 3-7. We believe that the logic of this decision extends to the present appeal.
The Attorney General has also had occasion to address the question whether KRS 61.878(1)(a)authorizes nondisclosure of letters of resignation submitted by public employees. In a line of opinions dating back to 1981, we have taken the position that, in general, such letters are not excluded from the mandatory disclosure provisions of the Open Records Act. See, e.g., OAG 81-315; OAG 85-136; 94-ORD-108; 97-ORD-121. At page 29 of 94-ORD-108, we observed:
Common to these opinions is the recognition that the privacy exemption applies only to matters which are unrelated to public business. Matters relating to the employment of a public employee are of considerable public interest. Matters relating to the management and operation of a public agency which prompted a public employee to tender his resignation are of the greatest public interest.
Nevertheless, we have also recognized that "privacy concerns relative to resignation letters containing references to, for example, personal illness or loss [must] be accorded considerable weight." Id. Release of this type of information, we concluded, would not necessarily serve the public interest in agency oversight. If information of a purely personal nature appears in a letter of resignation, the agency may exercise its rights under KRS 61.878(4) to mask the excepted materials and make the nonexcepted materials available for examination after explaining the statutory basis for the nondisclosure.
Western Kentucky University does not rely exclusively on KRS 61.878(1)(a) to support its denial of Mr. Riley's request. The University also advances the argument that KRS 61.878(1)(i) and (j) authorize nondisclosure of the records identified in that request. While we agree with the University that City of Louisville , above, and its progeny are controlling on the issue of access to investigative records of a preliminary nature, we believe that the University interprets the rule of law in that case too broadly.
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
It is the opinion of this Court that subsections [(i)] and [(j)] quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
This holding, however, is limited to Internal Affairs' involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection [(i)] relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878[(4)]: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
City of Louisville at 659, 660 (emphasis added).
This position was reaffirmed one year later in a case involving public access to complaints against physicians licensed by the state licensure board. In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983), the Court of Appeals determined that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once final action is taken by the board. With respect to letters, correspondence, and reports compiled by the board, the Court commented:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659. The trial court found that:
Board of Medical Licensure at 956, 957 (emphasis added).
Nine years would pass before the courts revisited this issue in a published opinion. In University of Kentucky v. Courier-Journal & Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action. " (Emphasis added.) In the intervening years, the Attorney General applied the principle in various contexts. See, e.g., OAG 83-405; OAG 84-98; OAG 89-69.
Bearing in mind that KRS 61.871 states that "free and open examination of public records in the public interest and the exceptions provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," and that the Kentucky Supreme Court has declared that the Open Records Act "exhibits a general bias favoring disclosure, " we find that KRS 61.878(1)(a), (i) and (j) must be given no broader application than is necessary to effectuate their purposes. It is the opinion of this office that the University's invocation of KRS 61.878(1)(a), (i) and (j) to authorize nondisclosure of all records which are responsive to Mr. Riley's request suggests a liberal interpretation of those exceptions which is not warranted by the statutes themselves or the cases and open records decisions construing them. An analysis of each record requested follows.
The portions of Jones's personnel file that relate to any disciplinary action considered or taken including informal reprimands; complaints made about him to the University; results of investigations of complaints; documents gathered during those investigations.
Our review of the records submitted to this office under authority of KRS 61.880(2)(c) disclose that the Office of Academic Affairs issued a reprimand to Mr. Jones after an investigation and review of the complaint of sexual harassment by the Equal Opportunity Office. Based on the authorities cited above, we conclude that Western Kentucky University improperly withheld the letter of reprimand and the complaint of sexual harassment from which it stemmed, notwithstanding the fact that the University characterized the reprimand as an internal disciplinary procedure. See 98-ORD-160, pages 2-3 (enclosed). If in that letter of reprimand the Office of Academic Affairs adopted the findings and recommendations contained in the Equal Opportunity Office's report as part of its final action, that report lost its preliminary characterization as well, and must be disclosed.
We believe that the University may take reasonable steps to protect the identity of the complainant by masking her name, and any personally identifiable information, which appears in the complaint, investigative report, and reprimand along with the names of other complainants and witnesses. The Daily News acknowledges that little public interest would be served by disclosure of this information, and that the complainants strongly substantiated privacy interests are clearly superior.
We do not attach the same weight to Mr. Jones's privacy interests. Having violated the public trust by engaging in improper conduct in the performance of his official duties, his privacy interests are significantly reduced. The public's interest in insuring that the University promptly, responsibly, and thoroughly investigated the allegations against Mr. Jones, and took appropriate action in response thereto, is considerable, and clearly outweighs his reduced privacy interest. As the Kentucky Supreme Court noted at page 328 of Board of Examiners , above, "In general, inspection of records 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." Disclosure of records relating to Mr. Jones conduct, and the University's response to complaints of same, will serve the public interest by subjecting agency action to public scrutiny.
Jones's letter of resignation
We reject the University's argument that because the governing board was not required to accept or approve Mr. Jones's letter of resignation no final action was taken relative to this document, and that it therefore must be characterized as a preliminary record or as correspondence with a private individual that is not intended to give notice of final agency action. We do not believe that Mr. Jones qualifies as a private individual. Nor do we believe that his letter of resignation qualifies as a preliminary draft or note, or as a preliminary recommendation or memorandum in which opinions are expressed or policies formulated. It is an open, public record documenting the decision of a public employee to voluntarily separate himself from public employment. The letter is final unto itself, and a matter of legitimate public interest. Consistent with the guidelines set forth above, it must be disclosed. Minutes of meetings of any committee which considered complaints against Jones and reports submitted to or generated by such committee.
Our review of the record further discloses that a sexual harassment grievance appeal committee was appointed to consider this matter, and that a hearing was conducted on September 29, 1998, in Glasgow. To date, the University has neither admitted nor denied that a hearing took place, but has argued that if a committee was convened its "deliberations and recommendations are required, by policy, to be confidential. ..." Such committees, the University maintained, operate in a purely advisory capacity and are not empowered to take final action. It is the opinion of this office that the committee appointed to consider complaints against Mr. Jones is a public agency, as that term is defined at KRS 61.805(2)(f) and (g), and that although it may have properly conducted the hearing on the complaints in closed session, pursuant to KRS 61.810(1)(f), it is obligated to release the minutes of the open portion of the meeting pursuant to KRS 61.835.
The fact that the committee functioned in a purely advisory capacity has no bearing on the resolution of this issue. Clearly, a body created by action of the University is a public agency even though its purpose and function are advisory. See, for example, 95-OMD-124 (advisory committee created by county judge/executive to consider ambulance service for the county is a public agency) ; OAG 91-54 (advisory body consisting of members of fiscal court and local planning and zoning commission, created by county judge/executive to discuss fee increases for zoning changes, is a public agency) . After it has redacted those portions of the minutes disclosing the identity of the complainants, and personally identifiable information, the University must release the minutes of the open session of its grievance appeal committee's September 29, 1998, meeting.
Whether the University must disclose the committee's findings and recommendations is a closer question. In some respects, the facts of this appeal resemble the facts which gave rise to the Kentucky Supreme Court's decision in Board of Examiners , above. In the latter case, a psychologist accused of sexual improprieties involving his clients resigned from practice before the Board of Examiners of Psychologists, the agency responsible for licensure and regulation of psychologists, could take formal action against him. In determining whether further disclosure of records relating to his clients' complaints would constitute a clearly unwarranted invasion of personal privacy, the court observed:
It appears from the already-disclosed portions of the record that the Board has faithfully performed its purpose. It is evident that the Board investigated the allegations against Tadajewski promptly, responsibly, and thoroughly. The conditions of Tadajewski's resignation were equivalent to permanent revocation of his license--the ultimate disciplinary measure which might have been imposed had the action matured. And, Tadajewski's capitulation prior to the scheduled hearing dispels any suspicion of persecution. Although the statute still applies, and the exception must be proven, these considerations are nonetheless material to the question of whether further disclosure would be "clearly unwarranted."
?
We must conclude that the information contained in the complaint file is of a personal nature--indeed, of a very personal nature--and that disclosure of the remainder of the public record in this case would constitute a serious invasion of the personal privacy of those who complained against Tadajewski, as well as other former clients involved in the investigation. The information sought touches upon the most intimate and personal features of private lives. Mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity, and that the Board has in this case effectually promoted the public interest in regulation, and that there is a countervailing public interest in personal privacy, here strongly substantiated, we hold that further disclosure of information contained in the public record in this case would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy.
Board of Examiners at 328. In the appeal before us, Mr. Jones resigned before the University's president had an opportunity to take final action on the committee's findings and recommendations. The resemblance, however, ends here. Not only has the University failed to disclose any documents to date, it has failed to acknowledge that complaints were made and remedial action taken. We have made our position clear on the public's right of access to redacted copies of the complaint, "internal" disciplinary action (reprimand) , investigative reports (if incorporated into that disciplinary action) , and the letter of resignation. We believe that additional disclosure of the grievance appeal committee's findings and recommendations may also be warranted. The committee's findings and recommendations contain critical information about deficiencies in the way the agency investigated and responded to the sexual harassment complaint, in addition to a recommendation that Mr. Jones be terminated, which is not "already disclosed."
We too are mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity, and that there is a strongly substantiated privacy interest on the part of complainants. Nevertheless, we conclude that if remedial action was taken in response to the committee's findings and recommendations, these findings and recommendations, and records reflecting remedial actions taken, must be disclosed. The complainants' privacy interests may, of course, be protected by means of redaction pursuant to KRS 61.878(4). The University, on the other hand, cannot avoid public scrutiny by advancing the argument that Mr. Jones's resignation ended this mater once and for all.
Any correspondence asking Jones to resign or detailing plans to dismiss him or change his status and contracts, payments, or severance agreements between Jones and the University since January 1, 1998.
There can be little doubt that if records exist documenting the disbursement of public funds to Mr. Jones since January 1, 1998, these records must be disclosed. This office has long recognized that "amounts paid from public coffers are perhaps uniquely of public concern ? [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc." OAG 90-30, p. 3; see also, OAG 91-7, p. 3 ("records which show funds received and disbursed are public records"); OAG 76-648, p. 2 ("wherever public funds go, public interest follows").
This is so even if Mr. Jones and the University entered into a confidentiality agreement relative to the amount and character of the consideration. In 94-ORD-72, this office held that the Housing Authority of Georgetown was foreclosed from enforcing a confidentiality provision in a settlement agreement with its former director. A copy of that decision is attached hereto and incorporated by reference. See also, Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, Ky., 941 S.W.2d 469, 472 (1997) ("a confidentiality clause ? cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act"). If records satisfying this portion of Mr. Riley's request exist, they must be disclosed. If no such records exist, the University should affirmatively so state. OAG 91-101.
With respect to correspondence between Mr. Jones and the University in which he was asked to resign or threatened with termination or a change in status or duties, we find that because he resigned before these threats could be carried out, such correspondence, if it exists, may be withheld pursuant to KRS 61.878(1)(j). Correspondence of this character would qualify for exclusion as "preliminary memoranda in which opinions are expressed or policies formulated or recommended." The University was preempted from acting on these threats by Mr. Jones's resignation, and the records therefore retained their preliminary character. Records satisfying this portion of Mr. Riley's request may be withheld. If no such records exist, the University is obligated to affirmatively so state.
Conclusion
This office is well aware of the uniquely sensitive character of sexual harassment complaints, and the potential "chilling effect" which may result from a strict interpretation of the Open Records Act as it relates to records documenting these complaints. However, neither the General Assembly, by statute, nor the courts, by published decision, have elected to treat these complaints of public employee misconduct more circumspectly than other complaints of public employee misconduct. As we have noted, our duty arises under KRS 61.880(2), and we cannot avoid this duty, or allay the parties' concerns, by carving out exceptions to public inspection where none exist, or straining construction of existing exceptions to conceal records when disclosure is required by law. On this basis, we conclude that Western Kentucky University improperly withheld the letter of reprimand issued to Mr. Jones, and the complaint from which it stemmed, as well as the investigative report prepared by the Equal Employment Office if that report was incorporated into the reprimand. Similarly, we believe that the University improperly withheld Mr. Jones's letter of resignation, the minutes of the September 29, 1998 meeting of the grievance appeal committee, and the findings and recommendations generated by that committee (if remedial action was taken in response to these findings and recommendations) . With respect to all of these documents, it is our view that the University may redact information revealing the identity of complainants and witnesses pursuant to KRS 61.878(4). Finally, the University must disclose records documenting disbursement of public funds to Mr. Jones since January 1, 1998, but may withhold correspondence to him in which the University threatened to terminate his employment or change his duties or status inasmuch as these records retained their preliminary character.
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.