Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services violated the Open Records Act in denying Elizabeth Coleman's request for "the information obtained during the investigation" of her January 3, 2011, grievance. Because Ms. Coleman is a Cabinet employee, she is entitled to documents reviewed, transcripts or recordings of interviews conducted (if they exist), and personal notes taken by Human Resource Administrator Jennie Young in the course of her investigation of Ms. Coleman's grievance. Because her request was "adequate for a reasonable person to ascertain [its] nature and scope," 1 and she did not request that copies of the records implicated by her request be mailed to her per KRS 61.872(3), we find that the Cabinet improperly refused to honor Ms. Coleman's request because she "did not specify which records she requested."
Two recent open records decisions are dispositive of these issues. These decisions are not ground breaking. Instead they mirror firmly established principles of open records law. The first of these principles is codified at KRS 61.878(3) and adopted as the basis for 11-ORD-039 holding that the University of Louisville improperly withheld emails exchanged by University employees that related to, or contained the name of, the requester, a professor in the Department of Bioinformatics and Biostatistics. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. 2
At page 4 of 11-ORD-039, the Attorney General reflected on the longstanding recognition "that a public agency employee, including a university employee has the right to inspect and to copy any record that relates to him," noting that KRS 61.878(3) "contains a nonexclusive catalog of the records to which public employees enjoy an enhanced right of access, specifically identifying 'preliminary and other supporting documentation. '" 11-ORD-039, p. 4.
Ms. Coleman is a Cabinet employee. The "information" to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from a grievance she filed. She is entitled to inspect and copy "any record," including investigator's notes, that relate to the investigation. The Cabinet's refusal to allow her access to these records constituted a violation of the Open Records Act.
So, too, did its refusal to honor Ms. Coleman's request because she "did not specify which records she requested." The Cabinet referenced KRS 61.872(3)(b), relating to requests for records by receipt of copies through the mail, and requiring a precise description of the records sought. Ms. Coleman did not request that the Cabinet mail her copies of records containing information obtained during the investigation of her grievance. Her request was adequate under the standard for onsite inspection set forth in KRS 61.872(2), requiring that the records be "describ[ed]," and construed by Kentucky's Supreme Court in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). In 11-ORD-028, this office quoted extensively from Chestnut, and in particular, the language that appears at page 662 of that opinion:
[W]e express our agreement with the District Court of Rhode Island's astute holding that an open records request should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure.
Chestnut at 662, citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). We are not inclined to dismiss a request as insufficiently specific because the word "information" appears where the word "records" might otherwise appear. Ms. Coleman did not ask who was interviewed, what records were examined, or why the Cabinet disposed of her grievance as it did. Such inquiries would have constituted improperly framed requests for information. Instead, she asked for "information obtained during the investigation" of her grievance. Substituting the word "records" for "information," it is apparent that Ms. Coleman wished to access all records obtained during the investigation. We conclude that her request was adequate for the Cabinet to ascertain its nature and scope and that no legal basis existed for denying her request. The Cabinet's refusal to honor her request constituted a violation of the Open Records Act.
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.
Distributed to:
Elizabeth ColemanJay KleinJon Klein
Footnotes
Footnotes