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 City of Ludlow violated provisions of the Open Records Act in responding to Kentucky Enquirer reporter Cindy Schroeder's February 2, 2000, request to inspect and copy:
the personnel record of former Ludlow Administrator Mike Moehlman, any complaints lodged against Mr. Moehlman, the final resolution of those complaints, and any investigative documents related to the complaints.
Ms. Schroeder also requested records reflecting "payments made to Mr. Moehlman while he was on leave from his city job last year, any city legal fees related to Mr. Moehlman, and any correspondence between the city of Ludlow and Mr. Moehlman and his attorney, from February 1999 to the present." Finally, Ms. Schroeder requested access to "any city records regarding the resolution of Mr. Moehlman's status with the city." For the reasons that follow, we find that the city's response was procedurally deficient and substantively incorrect.
In a response dated February 23, 2000, Ludlow city attorney Peter J. Summe partially denied Ms. Schroeder's request. Relying on KRS 61.878(1)(a), he maintained that Mr. Moehlman's "personnel file contains information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy. " Mr. Summe explained that Mr. Moehlman has initiated legal action against the city in which he alleges publication of defamatory information and wrongful discharge. Mr. Summe did, however, furnish Ms. Schroeder with a copy of Mr. Moehlman's employment contract. In closing, he advised her that "any other public information such as payments to Mike Moehlman should be obtained from the city." One month later, Ms. Schroeder initiated this appeal, challenging the city's refusal to permit her to inspect Mr. Moehlman's personnel record, including complaints, records documenting final resolution of complaints, and investigative documents relating to complaints, as well as records documenting legal fees incurred by the city as a result of the civil action initiated by Mr. Moehlman, correspondence between the city and Mr. Moehlman or his attorney concerning that action from February, 1999, to the present, and records reflecting "resolution of Mr. Moehlman's status with the city."
In a supplemental response directed to this office, Mr. Summe briefly elaborated on the city's position. Referring to the subject of the records request as "a former employee/City Administrator," he noted that Mr. Moehlman "was placed on paid administrative leave by the city. . . ." Continuing, he observed:
The city is concerned about the public disclosure of a private or personal nature that would be construed by Mr. Moehlman as an invasion of his right of personal privacy. This file also contains information compiled in the administrative decision to place Mr. Moehlman on leave.
The City of Ludlow did provide Mr. Moehlman's employment contract and offered to allow inspection of financial records regarding his compensation.
On behalf of the city, he again denied Ms. Schroeder's request "for the two reasons set forth above."
It is the opinion of this office that the City of Ludlow violated KRS 61.880(1) in failing to respond to Ms. Schroeder's request in writing, and within three business days, in failing to cite the specific exception authorizing the withholding of each of the records that she requested, and in failing to briefly explain how the exception applies to each of the records withheld. Further, it is our opinion that the city improperly relied on the privacy exception in issuing a blanket denial of Ms. Schroeder's request for specific personnel records, consisting of written complaints, records documenting final resolution of those complaints (including the decision to take no action), and any investigative documents incorporated into the final action on those complaints. We also find that the city erred in withholding records documenting legal fees incurred by the city in defending Mr. Moehlman's suit against it, and records documenting Mr. Moehlman's final status with the city, such as a termination letter, severance agreement, or a letter of resignation. With respect to correspondence exchanged by the city and Mr. Moehlman or his attorney from February, 1999, we find that the city articulated no legal basis to support its denial, and that unless it can do so by citing one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (1), and explaining the exception's applications to the record withheld, it must also disclose those records.
Procedural issues - failure to comply with KRS 61.880(1)
KRS 61.880(1) establishes procedural 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.
In construing this provision, the Kentucky Court of Appeals has recognized:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). The court declared that a "limited and perfunctory response" does not "even remotely comply with the requirements of the Act. . . ." Id.
The record before us reflects that Ms. Schroeder's request was submitted on February 2, 2000, and the city's response issued on February 23. Thus, some fifteen business days elapsed between the date of request and agency response. Although Mr. Summe did not directly address this delay in responding to Ms. Schroeder's request, he explained that the city currently has no clerk/records custodian. This does not, in our view, relieve the city of its duty to respond in three business days. To the extent that the city failed to do so, it violated KRS 61.880(1).
Moreover, the city's open records response did not conform to the remaining procedural requirements set forth at KRS 61.880(1). The city did not include a statement of the specific exceptions authorizing the withholding of the various records identified in Ms. Schroeder's request, or explain how the exceptions applied to the records withheld. Instead, the city broadly referenced KRS 61.878(1)(a) in issuing a blanket denial of her request for Mr. Moehlman's personnel file and the individually identified records contained therein. The city did not indicate on what statutory basis it denied her request for records reflecting city legal fees incurred in defense of Mr. Moehlman's civil action, correspondence relating to that action, and any records documenting resolution of his status with the city. To the extent that Kentucky's courts have mandated "particular and detailed information in response to a request for documents," Id. at 858, the City of Ludlow's response was deficient. We urge the city to review KRS 61.880(1) to insure that future response conform to the Open Records Act.
Substantive issues - failure to disclose nonexempt public records
The City of Ludlow furnished Ms. Schroeder with a copy of Mr. Moehlman's employment contract, a record contained in his employment file, and agreed to furnish her with records documenting payments made to Mr. Moehlman while he was on paid administrative leave. All other records identified in her request remain in dispute. The largest category of disputed records consists of records broadly described as Mr. Moehlman's personnel file. The city has denied Ms. Schroeder access to these records on the basis of 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 monitoring the city's removal of a prominent public official. 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.
The courts and this office have addressed the issue of public agency denial of broadly framed requests for personnel files. In an early open records opinion, the Attorney General 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 personnel files generally contain this mixture of exempt and nonexempt records, it is incumbent on a requester to "specify the particular documents within such files to be inspected." OAG 85-88, p. 3. 1
This Ms. Schroeder has done by specifically requesting access to any written complaints against Mr. Moehlman, any documents reflecting final resolution of those complaints, any investigative documents related to the complaints and incorporated into final agency action, and any documents memorializing his final status with the city. 2 With respect to these records, we find that the City of Ludlow's reliance on KRS 61.878(1)(a) as a basis for denying access was misplaced, and that it is obligated to disclose all existing records that are responsive to these specific requests.
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. Although we are mindful of the principle that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Board of Examiners at 328, we have 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. At pages 2 and 3 of 96-ORD-86, we observed:
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983);Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists , above; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
OAG 91-41, p. 5.
See also 98-ORD-45; 99-ORD-39.
This principle of law applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action will evidence whether the public agency faithfully discharged its duties.
97-ORD-121, p. 8. "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.
In the appeal before us, the record does not reveal whether Mr. Moehlman was placed on paid administrative leave as a result of complaints made against him, or indeed if he was terminated or resigned as a result of such complaints. Nor does the record disclose if other complaints, substantiated or unsubstantiated, were lodged against Mr. Moehlman during his tenure as city administrator. If any complaints against Mr. Moehlman exist, the City of Ludlow is obligated to disclose them. Consistent with the principles set forth above, the city is also obligated to disclose any records documenting final action relative to those complaints, including the decision to take no action, and any investigative records incorporated into final agency action. If no such records exist, the City of Ludlow is obligated to affirmatively so state in clear and direct terms. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-116.
The city must also disclose any documents reflecting resolution of Mr. Moehlman's status. The Attorney General has recognized that, given the compelling public interest in disclosure, termination letters must be made available for public inspection. 99-ORD-164; 97-ORD-128; 95-ORD-147. By the same token, if a public employee is separated from public employment voluntarily, through resignation, or by agreement of the parties, through settlement, the public is entitled to inspect records documenting same. With reference to letters of resignation, this office has observed:
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.
94-ORD-108, p. 29. 3 See also, OAG 81-315; OAG 85-136; 97-ORD-121; 99-ORD-39. With reference to settlement/severance agreements under the terms of which a public employee is separated from employment, the Attorney General has adopted the position of the Kentucky Supreme Court, articulated in Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 473 (1997):
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 of litigation between [a former public employee] and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize.
The presence of a confidentiality clause in such an agreement does not alter our analysis inasmuch as such a clause "is not, in general, entitled to protection." Id. ; 98-ORD-24; 99-ORD-39; 00-ORD-5. If Mr. Moehlman was terminated by the city, voluntarily resigned from his employment with the city, or entered into a settlement/severance agreement with the city, thereby resolving his employment status, Ms. Schroeder is entitled to inspect and receive copies of any records in the city's custody which memorialize these acts.
Records for which no exemption is claimed
The City of Ludlow failed to invoke any exception in support of its apparent refusal to disclose records reflecting legal fees incurred by the city in its defense of Mr. Moehlman's lawsuit, and correspondence exchanged by the parties relative to the lawsuit from February, 1999, to the present. With reference to the first category of records, we know of no statutory basis for denying Ms. Schroeder access, and find that records reflecting legal fees must be disclosed. With reference to the second category of records, we find that unless the city can articulate a statutory basis for denying access to correspondence exchanged, these records, too, must be disclosed.
On the issue of access to records documenting legal fees expended, the Attorney General has long recognized the public's right to inspect records of payments made by an agency to its attorneys in defense of litigation. OAG 82-169; OAG 85-91; OAG 92-14; OAG 92-92; 95-ORD-18; 97-ORD-66. Rejecting the argument that such records are shielded from disclosure by operation of the attorney-client privilege, we have reasoned:
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 . . . mandates 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)(j) [now codified as KRS 61.878(1)(l)], the exempt material should be separated from the non-exempt materials, and the non-exempt materials released for public inspection.
In OAG 92-92, we elaborated on OAG 92-14, reaffirming our opinion that information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client, and announcing that the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, and premature disclosure of the information would harm the agency. KRS 61.878(1)(h).
95-ORD-81, p. 3. These decisions firmly establish the public's right of access to records reflecting public funds expended for the rendition of legal services. Assuming that the City of Ludlow has incurred such expenses in the defense of the action filed against it by Mr. Moehlman, it must disclose all existing records documenting same.
We cannot declare, with absolute certainty, that no statutory basis exists for denying Ms. Schroeder's request for correspondence relating to the litigation, and exchanged by the city and Mr. Moehlman or his attorney from February, 1999, to the present. Such records may or may not enjoy protection under one or more of the exceptions codified at KRS 61.878(1)(a) through (l), "[a] cursory examination [of which] reveals an extensive list of matters excluded from public access, . . . suggesting an absence of legislative intent to create unrestricted access to records." Beckham , above at 578. Nevertheless, because the burden of proof rests with the city to substantiate its denial of this portion of Ms. Schroeder's request, we find that it must either disclose any such correspondence or articulate a basis for denying access to it in terms of the requirements of KRS 61.880(1) and KRS 61.878(1)(a) through (l). KRS 61.880(2)(c). If no correspondence exists which satisfies this portion of her request, the City of Ludlow is obligated to so state in clear and direct terms.
Conclusion
In sum, we find that the City of Ludlow's response to Ms. Schroeder's February 2, 2000, open records request did not conform to the procedural requirements set forth at KRS 61.880(1), and that its partial denial of her request was not legally authorized under the Open Records Act. The city must disclose all existing records that are responsive to her request for complaints against Mr. Moehlman, action taken on those complaints, and investigative records incorporated into those actions. The city must also disclose all existing records documenting the resolution of Mr. Moehlman's employment status. Finally, the city must disclose records documenting legal fees paid from public coffers in defense of Mr. Moehlman's lawsuit against it, and may be required to disclose correspondence relating to the litigation unless it can justify its decision to deny access on the basis of one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l).
In light of Mr. Moehlman's apparent sensitivity regarding the matters which prompted his separation from public employment, the City of Ludlow may wish to review the case of Beckham v. Board of Education , cited above, and in particular, that portion dealing with notice to third parties affected by disclosure, before proceeding to release the nonexempt records which Ms. Schroeder requested.
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.
Footnotes
Footnotes
1 The "line of demarcation" between exempt and nonexempt records in a public employee'spersonnel file was described in 97-ORD-66 as follows:
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.
97-ORD-66, p. 7.
2 If Ms. Schroeder is interested in obtaining other specific records from Mr. Moehlman's personnel file, such as his resume or job description, she is obliged to submit a new request in which she identifies the records with specificity.
3 The Attorney General has 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 would not necessarily serve the public interest in agency oversight. We have therefore held that an agency may redact information of a purely personal nature from a letter of resignation, and, pursuant to KRS 61.878(4), make the remaining portions of the letter available for inspection.