Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Commission on Human Rights violated the Open Records Act in partially denying Kenneth S. Handmaker's February 6, 2006, request for records 1 relating to an action before the Commission, Elfanan v. J. P. 4th Street Line, LLC d/b/a Red Cheetah, in which Mr. Handmaker's law firm represents Red Cheetah. For the reasons that follow, we find that although its original response was procedurally deficient, the Commission's partial denial of Mr. Handmaker's open records request was otherwise correct.
By letter dated February 21, 2006, Commission Staff Attorney Alteata McWilliams responded to Mr. Handmaker's request, releasing "certain file documents already in [the requester's] possession as counsel for Red Cheetah," and withholding the remaining unidentified documents on the basis of KRS 61.878(1)(h), 2 KRS 61.878(2)(g), 3 KRS 61.878(1)(i), KRS 61.878(1)(j), and KRS 344.250. On behalf of the Commission, Ms. McWilliams explained that "[a] finding of probable cause is not a completion of this action," and, further, that "[n]otes and memoranda prepared or compiled by the investigator do not bind the agency and are preliminary to the adjudicatory proceeding." With reference to the Commission's invocation of KRS 344.250, she advised:
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. The United States District Court, has held that the term "person" means employer. Kentucky Commission on Human Rights v. Inco Alloys International, Inc. 161 FRD 671 (W. D. KY 1995). In this case, it would be the Respondent, Red Cheetah. Since [Mr. Handmaker's] open records request does not gives us permission to disclose any information obtained from the Respondent, the Commission is prohibited from disclosing information obtained from a Respondent. [Sic.]
Shortly thereafter, Amy E. Shoemaker, an attorney in Mr. Handmaker's law firm, initiated this appeal, asserting that the Commission erred in withholding the requested records. It was her position that the Commission's response was deficient insofar as it did not provide "particularized justification for the withholding of documents, or groups of documents" within the meaning of KRS 61.880(1), as construed in 97-ORD-41; that its reliance on KRS 61.878(1)(h), (i), and (j) were, in any event, misplaced insofar as "the finding of 'probable cause' in a Commission investigation [is] a final action warranting the disclosure of the records relied upon by the Executive Director in reaching that determination," 4 and that its position was otherwise untenable in light of the fact that its own Notice of Hearing expressly authorizes the parties "to examine . . . a list of witnesses the parties expect to call at the hearing, any evidence to be used at the hearing, and any exculpatory evidence in possession of the agency . . . ." 5
In response to a series of questions propounded to the Commission by this office pursuant to KRS 61.880(2)(c), 6 following commencement of this appeal, Ms. McWilliams advised this office that the records withheld consisted of:
1. Affidavit of police officer who observed the discriminatory action;
2. Letters to police officer regarding his observation;
3. Emails to police officer regarding his observation; and
4. Complainant's photographs.
In response to our request that the Commission describe the potential harm from premature disclosure of the records, Ms. McWilliams recited the language of KRS 61.878(1)(h). 7 She reiterated that the probable cause determination "does not adopt the investigator's handwritten notes in the file or the investigator's log, " and that these documents therefore do not forfeit their preliminary characterization under KRS 61.878(1)(i)( and (j). Amplifying on this view, she described the process undertaken by the Commission following receipt of a complaint of discrimination as follows:
Pursuant to KRS 344.200(1) , 344.210, and 104 KAR 1:030, the commission staff or a person designated pursuant to its administrative regulations shall promptly investigate the allegations of unlawful practice set forth in the complaint. An enforcement officer/investigator is the staff assigned to investigate a complaint. A copy of the complaint is furnished to the Respondent within (5) days. The Respondent within twenty days files an answer with the Commission by certified mail. KRS 344.210(1). The staff reviews the Respondent's answer with the Complainant. If after investigating the staff makes a determination of no probable cause, the investigator writes a case summary that is forwarded to the Commission who after review dismiss the complaint. The Complainant has 10 days to file for reconsideration. If it is determined there is no probable cause, the investigator writes a case summary that is forwarded to the Commission who after review dismiss the complaint. 8
If the Complainant provides any evidence to refute the Respondent's response, the staff continues to investigate and gather evidence for the complaint. If after investigation, the investigator thinks it is a probable cause or does not know which direction to take, he/she requests a case review panel. The panel consists of the enforcement director, the managing attorney, a staff attorney, and the investigator. The staff attorney determines if the case is probable cause based on the evidence. The staff attorney then drafts a probable cause letter and it is given to the Executive Director for approval. The case is then assigned to the staff attorney for adjudication.
If the staff determines, after investigation, or if the Commission determines there is probable cause to believe that the respondent has engaged in an unlawful practice, the Commission staff shall endeavor to eliminate the alleged unlawful practice by conference, conciliation, and persuasion.
With reference to the Commission's reliance on KRS 344.250 as a statutory bar to disclosure, Ms. McWilliams reiterated that although 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 Chapter 344, Red Cheetah, as the respondent/employer, is entitled to the disputed records and Red Cheetah's attorneys enjoy the same entitlement upon presentation of proof confirming Red Cheetah's consent to disclosure of the disputed records. 9
Having reviewed the arguments advanced by the parties to this appeal, we find that the Commission's original response to Mr. Handmaker's request was procedurally deficient but substantively correct. To begin, the Commission erred in failing to describe, in at least general terms, the records or types of records withheld, correlating those records, or types of records, to the exceptions authorizing nondisclosure, and briefly explaining how these exceptions apply to the records withheld. As Ms. Shoemaker correctly notes, the Kentucky Court of Appeals has declared:
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 . . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act . . . .
Edmondson v. Alig, Ky. App. 926 S.W.2d 856, 858 (1996). Although the Commission largely fulfilled its KRS 61.880(1) duties by providing additional information as to the nature of the records withheld in response to this office's KRS 61.880(2)(c) inquiry, its original response was deficient. We urge the Commission to bear these observations in mind in responding to future open records requests.
Nevertheless, we affirm the Commission's partial denial of Mr. Handmaker's request on the basis of KRS 61.878(1)(i) and (j) as well as KRS 61.878(1)(l), incorporating the confidentiality provision found at KRS 344.250(6) into the Open Records Act. 10 Our conclusion relative to the Commission's reliance on KRS 61.878(1)(i) and (j), finds support in 92-ORD-1126 and a more recent decision mirroring the '92 decision, 04-ORD-163, both involving the Lexington Fayette Urban County Human Rights Commission. In each of these decisions, we affirmed the LFUC Commission's characterization of investigatory records, including the investigator's logs, notes, and memoranda, witness statements and interoffice memoranda as preliminary records because they were not adopted by the Executive Director as part of his final action, 11 or because there was insufficient evidence in the record on appeal to establish that they were or were not adopted as part of his final action. 12 Critical to our determination was the distinguishing fact that the Executive Director of the LFUC Commission was vested with final authority in resolving discrimination complaints through the issuance of letters of determination.
At page 2 of 92-ORD-1126, we observed:
When a charge is filed with the Commission, it is assigned to an investigator, who is responsible for collecting evidence and making recommendations relative to the charge in a final investigative report. That report may or may not be adopted by the Executive Director in his letter of determination. In the action before us, the documents which the commission withheld consist of the investigator's log, notes, and memoranda, as well as the intake questionnaire, document analysis sheet, and final investigative report. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the Commission does not have authority to issue a binding decision, but acts as a fact finder. Similarly, the documents which he generates in the course of his investigation remain preliminary unless they are adopted by the Executive Director as part of his final action. Here, the Director did not adopt the recommended finding of probable cause, but instead issued a no cause finding. Therefore, the investigator's log, notes, memoranda, intake questionnaire, document analysis sheet, and final report did not lose their internal, preliminary character, and were properly withheld by the Commission.
Citing,
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W. 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983); and
Courier-Journal of Louisville Times Co. v. University of Kentucky, Ky., 830 S.W.2d 373 (1992). Similarly, at page 3 of 04-ORD-163, we observed:
When a claim is filed with the LFUCHRC, the case is assigned to an investigator whose function is to collect evidence and make recommendations relative to the claim in a final investigative report which the Executive Director may or may not adopt in his letter of determination. 94-ORD-92, p. 4; 98-ORD-168; 95-ORD-109. Here, the records withheld by the LFUCHRC consist of the investigator's notes and memoranda, the investigative log, final investigative report, investigative plan, related correspondence, and a memo to the file. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the LFUCHRC does not have the authority to issue a binding decision, but instead acts strictly as a fact finder. Likewise, the records generated during the course of his investigation remain preliminary unless adopted by the Executive Director as a basis for his final determination relative to the claim.
Here the record is devoid of evidence upon which to base such a conclusion. Absent evidence to the contrary, however, this office assumes that [the Executive Director] did not expressly adopt the investigator's findings or recommendations as a basis for his final determination just as he did not in the matter which culminated in 94-ORD-92, 95-ORD-109, and 98-ORD-168. That being the case, the records at issue are still properly characterized as preliminary and, therefore, are not subject to public inspection.
These decisions are distinguishable from the instant appeal insofar as they involve the Lexington Fayette Urban County Human Rights Commission, an agency in which final decision making authority is vested in the Executive Director, and insofar as they involved complaints upon which final action had been taken.
The process employed by the Kentucky Human Rights Commission vests final decision making authority in the eleven member Commission, not in the Executive Director, and no final action has been taken in this matter. Accordingly, the requested documentation retains its preliminary character, and will forfeit same only if adopted by the Commission as the basis for the final determination when that determination is made. The Commission properly denied Mr. Handmaker's open records request on the basis of KRS 61.878(1)(i) and (j), and we find no error in its refusal to disclose investigatory records.
We find equally persuasive the Commission's arguments with respect to KRS 344.250(6). That statute provides:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
This office has long recognized that "what is available for public inspection is dependent upon the level at which the proceeding has progressed." OAG 85-5, p. 3. 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 open records requester seeking access to the investigative file is the complainant or the respondent against whom the complaint is filed does not compel a different result. 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:
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. See also 99-ORD-224 (affirming Louisville and Jefferson County Human Relations Commission's denial of complainant's request to review all records in her closed file on the basis of KRS 344.250(6)); 02-ORD-76.
Similarly, in 00-ORD-209 we observed:
Given the expansive language of KRS 344.250(6), this office has recognized on several occasions that the fact that the person seeking access to a record or records obtained by the Commission in discharging its duties under Chapter 344 is the person who originally filed the complaint does not alter the analysis or compel a different result. Our analysis is not altered by virtue of the identity of the complainant or respondent. The purpose of achieving candor in the investigation and conciliation process which underlies the confidentiality provision, the legislature has concluded, must be promoted regardless of [the identities of the complainant and respondent]. . . . . [T]his conclusion cannot be construed as "a statement that the public has no legitimate interest in how public agencies conduct their operations," but as a legislative recognition that the greater public good is served by promoting the conciliation process through frankness and candor, and extending assurances of confidentiality toward this end. With respect to human rights commissions organized under Chapter 344, the legislature has determined that the public's right to know is adequately served by disclosure of only those records identified in the cited open records decisions.
00-ORD-209.p. 6. We believe that the logic of these decisions must be extended to the appeal before us, and affirm the Commission's partial denial of the request submitted by Mr. Handmaker, who for open records purposes, stands in the same shoes as any other requester. See
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994) (holding that "[the courts'] 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").
It is our understanding that a schedule for discovery has been set in this matter and that pursuant to that schedule, the Notice of Hearing, and KRS 13B.050(3)(g), Mr. Handmaker and Ms. Shoemaker's client will obtain all documentary evidence to be used at the hearing, and all exculpatory evidence, in due course. While these requesters are entitled to any nonexempt records that are otherwise available to members of the public utilizing the Open Records Act in the intervening period, this office is not empowered to facilitate their end-run around the normal discovery process by requiring disclosure of preliminary investigative records protected from public disclosure by KRS 61.878(1)(i) and(j), as well as KRS 344.250(6).
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.
Amy E. ShoemakerMiddleton Reutlinger 2500 Brown and Williamson TowerLouisville,KY 40202
Alteata McWilliamsStaff Attorney Kentucky Commission on Human Rights The Heyburn Bldg.332 West Broadway, 7th FloorLouisville, KY 40202
Morgan RansdellKentucky Commission on Human Rights The Heyburn Bldg.332 West Broadway, 7th FloorLouisville, KY 40202
Footnotes
Footnotes
1 Those records were identified as:
1. Witness statements, including audio and/or video tapes;
2. Final Investigative Report;
3. Investigator (s)'s log (s);
4. Investigator (s)'s notes;
5. Intake questionnaire;
6. Charging party's statement;
7. Affidavits;
8. Photographs;
9. Charging party's statement(s);
10. Any other exculpatory documents in your possession.
2 Miscited as KRS 61.878(h).
3 A nonexistent provision.
4 Citing City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982) and 92-ORD-1126.
5 The record on appeal demonstrates that this matter is scheduled for a hearing on September 28, 2006; that the hearing officer has ordered discovery to be completed by July 31, 2006; and that witness and exhibit lists must be exchanged by August 28, 2006. In supplemental responses directed to this office following commencement of this appeal, Ms. McWilliams indicates that Red Cheetah's "[a]ttorney was advised that he could receive the information through the normal discovery process."
6 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
7 Again, miscited as KRS 61.878(1)(g).
8 Ms. McWilliams previously advised that:
A finding of probable cause by the KCHR's Executive Director is not a completion of the action. Pursuant to KRS 13B, only the agency head can issue a final order. For KCHR, the agency head is the eleven Commissioners appointed by the governor. A final decision is made either after a full hearing is held or a finding of no probable cause and complaint is dismissed. The Commission also issues dismissal after a case is settled.
9 It is our understanding that, in exercising the discretion vested in it by KRS 344.250(6), the Commission discloses to the Complainant those documents submitted by the Complainant, and to the Respondent those documents submitted by the Respondent. Neither of the parties enjoys a right of wholesale disclosure under the provision. Were this the case, there would be no dispute before us.
10 The Commission also relied on KRS 61.878(1)(h) in partially denying Mr. Handmaker's request. While the Commission clearly satisfies two parts of the three part test for invocation of this exception, insofar as it is an "agency involved in administrative adjudication," and the disputed records were "compiled in the process of detecting and investigating statutory or regulatory violations," it has made no particularized showing of harm relative to the records withheld despite being afforded two opportunities to do so. Accord, 95-ORD-95; 97-ORD-129; 00-ORD-81; 02-ORD-224; 03-ORD-015; 04-ORD-114; 05-ORD-003. In responding to this office's KRS 61.880(2)(c) request for such a particularized showing, the Commission did little more than recite the language of the exception. Given the agency's statutorily assigned burden of proof, and the concluding sentence of KRS 61.878(1)(h), importing "a legislative resolve that the exception be invoked judiciously, and only when each of these tests are met," 95-ORD-95, pp. 2, 3, we believe it was incumbent on the Commission to describe, in at least general terms, the nature of the harm that would result from premature disclosure.
11 92-ORD-1126.
12 04-ORD-163.