Request By:
Lawrence Trageser
John D. Dale, Jr.
Opinion
Opinion By: Andy Beshear, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the City of Taylorsville violated the Open Records Act in withholding responses to ethics complaints as preliminary, and in failing to redact personal information and release nonexempt portions of the responses. We find that the City violated the Open Records Act in withholding responses to ethics complaints as preliminary, in failing to redact personal information, and in failing to release nonexempt portions of the responses.
Lawrence Trageser submitted an open records request to the City on February 9, 2017, requesting "any and all records reflecting response letters sent to the City of Taylorsville Ethics Commission by those city commissioners charged with ethics violations by City of Taylorsville Clerk Steve Bevin. The commissioners are Ellen Redman, Kathy Spears and Beverly Ingram." 1 The City responded on February 14, 2017 that "the records you requested were preliminary drafts of responses in regard to an ethics complaint investigation, and are exempt under KRS 61.878(1)(j) and, which contained personal information which would be exempt under KRS 61.878(1)(a). Therefore . . . your request is denied."
Trageser initiated this appeal on April 17, 2017. Trageser contended:
City of Taylorsville Ethics Chairwoman Lynn McIntosh wrote and or created three response letters to each of the three City of Taylorsville commissioners charged with ethics violations. In those letters, Chairwoman McIntosh specifically references receiving their response letters to her, thus the response letters do exist. . . .
Petitioner has also provided a Spencer Magnet news story again confirming that the ethics investigation and or the inquiry are final . . . .
Petitioner asserts that since the ethics investigation and or inquiry has concluded and a decision has been rendered and the final decision made by the City of Taylorsville Ethics Commission Chairwoman took into account the commissioner's response letters . . ., those documents have lost their preliminary status and have become part of the final action . . . .
The City responded to the appeal on April 28, 2017, stating:
Mr. Trageser has not cited any law in support of his position involving an Ethics Commission created under the provisions of KRS 65.003 . . . .
Of interest is the statute specifically states "financial disclosure statements" "shall be available for public inspection" but does not require "Ethics Complaints", "Ethics Opinions" to be made public and, does not even mention "Responses" to an Ethics Complaint, but only mentions "Receipt of Complaint" "Opinions in response to inquiries" and "investigation" . . . .
The Administrator considers the above language, or lack thereof, significant as it appears the Legislature has chosen not to make documents, other than "financial statements", available for public inspection in regard to KRS 65.003.
Trageser replied on May 14, 2017, arguing that in KRS 65.003 , "the legislature wanted it to be crystal clear that all of those specific records are to be made available but in stating that intent, the legislature did NOT state that all other records would not be made available."
KRS 65.003(3)(d) requires a city's code of ethics to provide for:
The designation of a person or group who shall be responsible for enforcement of the code of ethics, including maintenance of financial disclosure statements, all of which shall be available for public inspection, receipt of complaints alleging possible violations of the code of ethics, issuance of opinions in response to inquiries relating to the code of ethics, investigation of possible violations of the code of ethics, and imposition of penalties provided in the code of ethics.
The City argues that the phrase "financial disclosure statements, all of which shall be available for public inspection" indicates by omission that other documents relating to ethics complaints shall not be open for public inspection. Trageser argues that the express specification that financial disclosure statements "shall be available for public inspection" does not otherwise shield other documents relating to ethics complaints from the application of the Open Records Act.
"When construing multiple statutes, it is our duty to read all statutes in harmony with one another in order to effectuate all statutes, if possible."
Castle v. Commonwealth, 411 S.W.3d 754, 757--58 (Ky. 2013). In 09-ORD-184, we held that KRS 65.003 does not create an additional exemption under the Open Records Act:
Nothing in KRS 65.003 authorizes cities or counties to treat as confidential "[a]ll . . . proceedings and records relating to a preliminary investigation . . . until a final determination is made," all preliminary investigative records that do not proceed to a formal hearing, or, for that matter, reprimands issued under "mitigating circumstances." Simply stated, the Joint Board has no authority to make confidential nonexempt public records. Unless records of the Joint Board enjoy protection under one or more of the statutory exceptions to the Open Records Act codified at KRS 61.878(1)(a) through (n), they are subject to public inspection . . . .
Id. ; see also 09-ORD-170. If the legislature had wished to create a specific exemption to the Open Records Act in KRS 65.003, it would have so stated. See, e.g. , KRS 15A.0651; KRS 197.025. It did not do so in KRS 65.003. Accordingly, we continue to construe KRS 65.003(d) as additionally providing that financial disclosure statements are always subject to public inspection, rather than providing a specific exemption to the Open Records Act, and the Open Records Act still generally applies to the records of a local ethics commission.
Given that the Open Records Act applies to documents of a local ethics commission, in order to withhold them, a local ethics commission must validly assert one of the statutory exemptions in KRS 61.878(1). The City asserted that the records are "preliminary drafts of responses in regard to an ethics complaint investigation, and are exempt under KRS 61.878(1)(j) and . . . contained personal information which would be exempt under KRS 61.878(1)(a)." 2 KRS 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." The responses to the ethics complaint sent by city commissioners are not preliminary recommendations or memoranda of the City; they are the final responses of the targets of the complaints. As such, they are not preliminary. See
Univ. of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("The Response signed by the University's president and submitted to the NCAA constituted the final result of an extensive investigation. . . . The fact that the Response was submitted prior to final action by the NCAA is irrelevant."). Accordingly, the responses to the ethics complaints are not preliminary documents under KRS 61.878(1)(j). In withholding the responses to the ethics complaints as preliminary, the City violated the Open Records Act.
The City also asserts that the responses contain personal information exempt under KRS 61.878(1)(a). KRS 61.878(4) provides that "if any public 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." If a document contains personal information, it is the agency's duty to redact that personal information and release the remainder of the document. In failing to separate out exempt material from nonexempt and release the nonexempt material, the City violated the Open Records Act.
In summary, in withholding responses to ethics complaints as preliminary, and in failing to redact personal information and release nonexempt portions of documents, the City violated 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. Under to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Trageser also attached other requests for documents and responses pertaining to the ethics complaints, but those do not appear to be at issue in this appeal.
2 The City asserted these exemptions in its response to Trageser's request, but did not mention them in its response to this appeal. It is unclear whether the City abandoned its assertion of these exemptions.