Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Pulaski County Detention Center violated the Kentucky Open Records Act in denying the request of Kenneth White for "a copy of the Jail Records of each officer who worked the pod where [he] was housed" during his incarceration at the Pulaski County Jail, "the shift they worked, their full name[s] and any [nicknames], the times they worked, their days off, and" the same records for any nurses or doctors who worked "during this time and this pod." In failing to cite the applicable statutory exception and briefly explain how the exception applies to the records withheld, PCDC clearly violated KRS 61.880(1). Because the Open Records Act contains no indication that application of the rules therein is suspended in the "presence of litigation," PCDC improperly denied Mr. White access to the requested personnel records on this basis. To the extent that PCDC belatedly invoked KRS 61.878(1)(a), its reliance was partially misplaced. However, PCDC may properly deny access to the requested personnel records pursuant to KRS 197.025(1) assuming PCDC establishes that disclosure would constitute a threat to the security of Mr. White, any other inmate, PCDC staff, PCDC, or any other person. Until then, PCDC stands in violation of the Open Records Act.
By letter dated September 21, 2004, Michael Harris, Jailer, PCDC, denied Mr. White's request for the following reasons:
1. Open records requests should not be used as a substitute [for] requests [under] discovery in litigation under the Civil Rules of Procedure[.]
2. Disclosure of this information does not serve a public purpose.
3. Disclosure of home address, Social Security Number, medical records, and marital status of a public employee is prohibited.
4. No funds for costs of copying records have been offered by the requesting party and the agency is entitled to collect a minimum of $ .10 per page for each document copied.
Attached to PCDC's response is a cover letter dated October 4, 2004, indicating to Mr. White that his check was also enclosed. In a letter dated October 6, 2004, and received in this office on October 8, 2004, Mr. White initiated this appeal from the denial of his request.
Upon receiving notification of Mr. White's appeal from this office, William M. Thompson, Pulaski County Attorney, responded on behalf of PCDC. As observed by Mr. Thompson:
Kenneth White was convicted of Conspiracy to Commit Murder of our Sheriff and is incarcerated at the Kentucky State Reformatory in LaGrange, Kentucky.
Mr. White has filed suit against Pulaski County, the Jailer and Deputy Jailer. We feel our response to him was proper and that he should proceed to seek discovery under the Civil Rules involving litigation and not through KRS [Chapter] 61 Open Records. (See enclosed law).
Attached to PCDC's supplemental response is an unidentified page from the most recent version of the Open Records/Open Meetings outline issued by this office referencing decisions which purportedly support the position of PCDC as well as authorities interpreting KRS 61.878(1)(a). 1 While this office is sympathetic to the circumstances which resulted in Mr. White's incarceration, PCDC's response to his request is both procedurally deficient and substantively incorrect.
As a public agency, PCDC is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-163; 04-ORD-106.
In arguing that disclosure of the requested information "does not serve a public purpose" and disclosure of "home address, Social Security Number, medical records, and marital status of a public employee is prohibited[,]" PCDC implicitly relied upon KRS 61.878(1)(a) as evidenced by the analysis contained in the outline excerpt attached to its supplemental response. 2 To this limited extent, the position of PCDC is supported by prior decisions of this office. 3 However, a public agency such as PCDC must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by this office:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213.
More generally, the Attorney General has said:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6) which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In short, neither the initial response nor the supplemental response of PCDC contains the specificity envisioned by KRS 61.880(1). 4 From a procedural standpoint, PCDC violated the Open Records Act in failing to comply with this statutory directive. In responding to future requests, PCDC should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
Turning to the remaining argument advanced by PCDC in support of its denial, PCDC has again misconstrued governing precedent. Although it is true that provisions of the Open Records Act should not be used by parties to litigation as a substitute for requests under discovery, the analysis does not end there. To the contrary, this office has recognized that the presence of litigation does not suspend an agency's duties under the Open Records Act in a line of decisions dating back to 1982. Early on, the Attorney General observed:
Although there is litigation in the background of an open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2. Elaborating upon this view, the Attorney General subsequently observed:
The presence of litigation among the parties should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position as follows:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein [is] suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3; See also 97-ORD-98; 95-ORD-27.
In OAG 89-65, the Attorney General qualified his decision with this cautionary language:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
Id., p. 3. To summarize, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, this office has not recognized the right of a public agency to deny access to public records on this basis.
In Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. As observed by the Court:
[KRS 61.878(1)] does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery.
(Original emphasis). Citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart, supra, at 863. Thus, Mr. White "stands in relationship to" PCDC under the Open Records Act as any other person.
Unless the requested records fall within one or more of the exceptions codified at KRS 61.878(1)(a) through (l), PCDC must disclose those records to Mr. White in a manner consistent with KRS 61.880(1). 5 Although PCDC erred in relying upon KRS 61.878(1)(a), the requested records arguably fall within the parameters of KRS 197.025(1), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from the application of the Open Records Act. Despite the undeniable deficiencies in PCDC's response, it "is the substance of the material sought to be discovered" which must determine the outcome of this appeal. Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996). 6
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person. (Emphasis added).
By enacting KRS 197.025(1) , "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 04-ORD-106; 04-ORD-017; 03-ORD-190. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 04-ORD-106; 04-ORD-017; 03-ORD-190. Application of KRS 197.025(1) "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 04-ORD-106; 04-ORD-017; 03-ORD-190.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from members of the public based on KRS 197.025(1) for conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting the procedures employed by facilities in performing an execution (97-ORD-51); and incident reports (03-ORD-190). See 04-ORD-017. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination, this office has declined to substitute its judgment for that of correctional facilities or the Department. 04-ORD-017, p. 5; 04-ORD-106. Consistent with the foregoing, PCDC may properly withhold the requested personnel records on the basis of KRS 197.025(1) assuming PCDC satisfies its burden of proof by establishing that disclosure would constitute a threat to the security of Mr. White, any other inmate, PCDC staff, PCDC, or any other person, and promptly notifies Mr. White in writing of its decision. To hold otherwise would contravene the purpose for which KRS 197.025(1) was enacted.
A party aggrieved by this decision may appeal it by initiating an 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.
Kenneth White, # 171647Kentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Michael R. Harris, JailerPulaski County Detention Center300 Hail Knob RoadSomerset, KY 42503
William M. ThompsonPulaski County AttorneyP.O. Box 5Somerset, KY 42502-0005
Footnotes
Footnotes
1 In a reply received by this office on November 3, 2004, Mr. White cites numerous federal opinions applying the Freedom of Information Act which are of limited precedential value in the context of an open records appeal since the FOIA does not apply to state agencies. See 04-ORD-090, p. 8. However, Mr. White correctly asserts that "doubts must be resolved in favor of disclosure" and "the burden is on the agency to justify its action." Implicitly conceding that identifying information such as the addresses and social security numbers of the employees is not subject to inspection, Mr. White clarifies that his request is for the "name and hours worked."
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2 In relevant part, Section VI., Exceptions to Right of Inspection, Subsection (D) provides:
1. Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a).
a. In Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), the [C]ourt adopted a test [] balancing the interests of the parties in the litigation as well as those of the public, measured by the standard of a reasonable person. Each case must turn on its own facts.
b. A similar balancing test is used by the federal courts in construing the federal Freedom of Information Act (FOIA). See, e.g., United States Department of Justice v. Reporter[s]Committee For Freedom of the Press [489] U.S. 749 (1989).
c. First determine if an individual has a cognizable privacy interest that KRS 61.878(1)(l) was intended to protect.
i. If so, balance that interest against the public's interest in disclosure.
ii. Relevant factors: whether an open records related purpose will be advanced by the disclosure and the magnitude of the privacy interest implicated.
iii. The identity of the requesting party is not a factor in assessing the public interest served by disclosure.
iv. See 94-ORD-45, OAGs 91-130, 91-105, 91-62, 86-15, 83-286.
Open Records and Open Meetings annotated outline, Office of the Attorney General, Division of Civil and Environmental Law, Civil Division, p. 19. Although omitted by PCDC, this section continues on page 20 as follows:
iii. The identity of the requesting party is not a factor in assessing the public interest served by disclosure.
iv. See 94-ORD-45, OAGs 91-130, 91-105, 91-62, 86-15, 83-286, 82-204.
3 As long recognized by this office:
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. 5; 03-ORD-213. See Open Records and Open Meetings, supra, p. 20. As evidenced by the foregoing, PCDC's blanket denial of Mr. White's request on this basis is contrary to the cited authorities. Accordingly, its reliance on this provision was misplaced with the exception of the specified information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(4) provides: "If any 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."
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4 In the future, PCDC should bear in mind that a response pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id.
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5 KRS 61.878(1), which precedes the twelve statutory exceptions to this general rule, provides:
The following public records are excluded from application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
Although this provision expressly prohibits a party to litigation from obtaining through the Open Records Act records which he or she could not obtain through pretrial discovery, it does not prohibit a party to litigation or a third party from obtaining otherwise nonexempt public records in this manner. See Department of Corrections v. Courier-Journal and Louisville Times Co., Ky. App., 914 S.W.2d 349 (1996).
6 Under such circumstances, "it may be that the legislature has failed to provide an appropriate sanction as to the custodian of records. But[,] that is an omission that needs to be addressed by appropriate remedial legislation rather than be releasing materials intended to be protected from public scrutiny." Edmondson, supra, at 859. Although this case differs from Edmondson insofar as the agency's invocation of the cited exceptions was not unwarranted, as is the case here, this rationale is equally applicable on the unique facts presented in our view.
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