Opinion
Opinion By: Andy Beshear,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 improperly relied on KRS 61.878(1)(i) and (j) in denying Cabinet employee Mary Tansey's March 13, 2016, request for:
All drafts, preliminary, proposed or other matter not issued involving [her] employment from the time it commenced, including any personnel actions, disciplinary actions; whether penalization or not; and all supporting documents, including all investigations, emails, subpoenas issued to any person or agency involving me, witness statements and supporting documents conducted by any entity of CHFS or OHRM or any agency or entity outside of the Cabinet.
In the event the Cabinet refused, in whole or in part, any responsive records, Ms. Tansey directed the Cabinet's attention to KRS 18A.095(11). 1
Over a period of time, the Cabinet released 589 documents to Ms. Tansey but advised her that it withheld "some documentation due to exceptions in the open records law, specifically KRS 61.878(1)(i) and KRS 61.878(1)(j)." 2 In supplemental correspondence directed to this office after Ms. Tansey submitted her appeal, the Cabinet again stated that "[a] handful of documents fell under the preliminary documents exception," but emphasized that it "released all other responsive documentation to Ms. Tansey." In response to questions posed to the Cabinet by this office under authority of KRS 61.880(2)(c), the Cabinet acknowledged the existence of additional records involving Ms. Tansey, but not deemed responsive, that were not released to her. 3
We find that the Cabinet improperly relied on KRS 61.878(1)(i) and (j) as the basis for withholding preliminary email. The Cabinet's position ignores the directive found at KRS 61.878(3). That statute 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, lay-offs, 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.
(Emphasis added.) This provision affords public agency employees an enhanced right of access to otherwise exempt records if those records "relate" to the employee. Past open records decisions support this view. For example, in 03-ORD-118 the Attorney General held that a public agency improperly withheld an email between two public officials relating to the requesting employee based on KRS 61.878(1)(i) and (j). A copy of 03-ORD-118 is attached to the decision and its reasoning adopted in full. See also, 10-ORD-200 (rejecting public agency's reliance on KRS 61.878(1)(a) to withhold report generated by employee relations office that related to her based on the overriding legal effect of KRS 61.878(3); and 95-ORD-97 (rejecting Cabinet for Health and Family Services predecessor agency, Cabinet for Human Resources', reliance on KRS 61.878(1)(h), (i), and (j) to deny employee access to records relating to her); compare, Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001) recognizing a narrow exception to KRS 61.878(3) for records protected by the attorney-client privilege. These open records decisions are dispositive of the issue presented in this appeal. Further analysis is unnecessary. The Cabinet for Health and Family Services violated the Open Records Act in partially denying Ms. Tansey's request for records relating to her employment and should make immediate provision for production of those records to her.
Either party may appeal this decision 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 KRS 18A.0-95(11) provides:
Any state employee, applicant for employment, or eligible on a register may appeal to the board on the grounds that his right to inspect or copy records, including preliminary and other supporting documentation, relating to him has been denied, abridged, or impeded by a public agency. The board shall conduct a hearing to determine whether the records related to the employee, applicant, or eligible, and whether his right to inspect or copy these records was denied, abridged, or impeded. If the board determines that the records related to the employee and that the right to inspect or copy these records has been denied, abridged, or impeded, the board shall order the public agency to make them available for inspection and copying and shall charge the cost of the hearing to the public agency. A state employee, an applicant for employment, and an eligible on a register shall not have the right to inspect or to copy any examination materials.
Our analysis proceeds under KRS 61.878(3) which resembles KRS 18A.195(11) but provides for a different enforcement mechanism.
2 Ms. Tansey also objected to the Cabinet's response to a March 17, 2016, request addressed to Jay Klein, Office of Human Resource Management, asserting that he agreed to produce documents but did not. The Cabinet refutes this assertion without explanation. If the records identified in Ms. Tansey's request to Mr. Klein have not yet been produced, the Cabinet must make immediate provision for production of the records.
3 The Cabinet indicates that these records relate to an old case Ms. Tansey worked, miscellaneous office matters involving Ms. Tansey, and a discussion about practice technique between Ms. Tansey and another individual. The Cabinet treated Ms. Tansey's request as a request for emails "where Ms. Tansey was the subject" and therefore characterized these emails as nonresponsive. In fact, these emails relate to Ms. Tansey and, if she wishes to obtain them they fall within the scope of her request and must be disclosed.