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 Louisville and Jefferson County Human Relations Commission violated the Open Records Act in denying Gracie M. Lewis's request "to review all records pertaining to [her] completed file." For the reasons that follow, we find that the Commission's denial of Ms. Lewis's request was procedurally deficient but substantively correct.
On November 10, 1999, Ms. Lewis submitted a written request to the Commission for access to the contents of the file relating to her housing discrimination case. Ms. Lewis's request apparently went unanswered, prompting her to call the Commission's executive director, Phyllis Atiba-Brown, on November 16 to ascertain the status of the request. In the course of their conversation, Ms. Lewis was advised that Ms. Brown had issued an order of dismissal in her case. On appeal, she complains that the case was closed before she had an opportunity to review the investigator's findings and "provide additional information."
In a response directed to this office, Commission attorney James E. McGovern defended the Commission's denial of Ms. Lewis's request. He explained:
KRS 344.250(6) and your office's opinion OAG 84-376 prohibit the public inspection of the preliminary investigation of a complaint before the agency that is dismissed. Only the order of dismissal is subject to open records inspection.
Pursuant to KRS 61.878(1)(i) and (j), the records requested by Ms. Lewis are preliminary drafts, notes, recommendations, memoranda, and correspondence with private individuals (non-final).
In closing, Mr. McGovern noted that Ms. Lewis would not be entitled to inspect the investigative file "even if it were subject to open records."
We begin by addressing the apparent procedural irregularities in the Commission's response. KRS 61.880(1) contains guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The record is devoid of evidence that the Louisville and Jefferson County Human Relations Commission responded to Ms. Lewis's request in writing, and within three business days, as required by KRS 61.880(1). Although Ms. Lewis allowed the Commission virtually no margin of error in its response time, telephoning Ms. Atiba-Brown on the fourth day after she submitted her request to ascertain its status, neither Ms. Atiba-Brown nor Mr. McGovern indicate that the Commission ever complied with the requirements of KRS 61.880(1), and neither furnished this office with a copy of the agency's response. We urge the Louisville and Jefferson County Human Relations Commission to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive legal issues in this appeal, we find that "what is available for public inspection is dependent upon the level at which the proceeding has progressed. " OAG 85-5, p. 3. This position finds support in a line of opinions of this office dating back to the mid-eighties in which KRS 344.250(6) was construed. That provision states:
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 this chapter.
For example, in OAG 85-5, the Attorney General addressed the propriety of the Lexington-Fayette Urban County Government Human Rights Commission's denial of a request to inspect records relating to complaints received in the preceding year. At page 3 of that opinion, we observed:
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. KRS 344.200(4) deals with a conciliation agreement and limits the information available to the "terms of the conciliation agreement."
If the proceeding has progressed to the point of a hearing under KRS 344.210, then the hearing transcript which is required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.
See also OAG 88-55; 98-ORD-186; 98-ORD-192; 99-ORD-20.
The fact that the person seeking access to the investigative file is the same person who originally filed the complaint does not alter this conclusion. In 99-ORD-20, the Attorney General affirmed the Kentucky Commission on Human Rights' denial of complainant's request for records substantiating the basis for its decision to dismiss her complaint. Acknowledging the legitimacy of the complainant's concern that she and her attorney could not adequately address the issue of whether her complaint was properly dismissed if she were denied an opportunity to inspect the records compiled in the investigation, we nevertheless concluded 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.
99-ORD-20, p. 3. We believe that the logic of this decision must be extended to the appeal before us.
The records which Ms. Lewis seeks contain "information obtained by the Louisville and Jefferson County Human Relations Commission pursuant to its authority under [KRS 344.250]" to conduct investigations of complaints. KRS 344.250(1). Accordingly, the Commission is prohibited from making the information public "except as reasonably necessary to the conduct of proceedings under [Chapter 344]." KRS 344.250(6). Although we have not been advised on what basis Ms. Lewis's complaint was dismissed, we assume that the Commission properly exercised its discretion in determining that the disputed documents were not reasonably necessary to the conduct of a proceeding, and elected to withhold them. We therefore affirm its decision to deny Ms. Lewis'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.