Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet ("Cabinet" or "KYTC") violated the Kentucky Open Records Act in denying Carrie Elliston's July 10, 2017, request to inspect and/or copy "[a]ll records pertaining to the most recent investigation conducted in June 2017 on the Office of Transportation Delivery," specifically:
. Any correspondence or documentation made by Amy Thompson regarding Carrie Elliston[;]
. The outcome of the investigation that was conducted in June 2017 on the Office of Transportation Delivery by KYTC Personnel and a copy of the transcript.
In a timely response per KRS 61.880(1), the Cabinet denied Ms. Elliston's request, citing KRS 61.878(1)(a) and (k) without further explanation. On appeal, the Cabinet advised that Ms. Elliston is a Cabinet employee "and she is seeking all documents created by a fellow employee that may reference her and an internal Personnel investigation conducted in regards to this fellow employee. "
Upon reviewing the responsive documents, Deputy Executive Director Matthew D. Henderson advised, the Cabinet determined that "all such documents predominantly concern the fellow employee and [Ms. Elliston] is referenced in very limited ways." (Emphasis added.) Quoting the language of KRS 61.878(1)(a), Mr. Henderson further advised that all of the responsive documents "contain highly sensitive personal information about this fellow employee, " which "falls outside the scope of information typically provided in regards to public employees. . . . Some of this information is medical in nature." Relying upon OAG 80-58 (an opinion that predates relevant case law construing KRS 61.878(1)(a)), 1 the Cabinet maintained that in this matter "there is very little at stake in regards to the public interest into the matters of government activity. This matter appears to be essentially personal in nature and the privacy concerns are high due to the medical nature of these document[s]." Implicitly relying upon KRS 61.878(1)(k), the Cabinet argued that it "would additionally be running afoul of federal HIPAA regulations on producing private medical information to third parties." The Cabinet further noted that Ms. Elliston was "not the subject of this investigation and no actions were taken in regards to her as a result of this matter." Mr. Henderson advised, "the private information is so intertwined and extensive that no meaningful production would be made with the needed redactions." Based upon the following, this office finds the Cabinet's initial response was both procedurally and substantively deficient; likewise, the Cabinet's ultimate disposition of Ms. Elliston's request is largely inconsistent with existing legal authority.
The Cabinet responded within three business days and cited the statutory exceptions it was invoking per KRS 61.880(1), but failed to provide any explanation of how the cited exceptions applied to records being withheld as that provision and KRS 61.880(2)(c) require. A public "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 language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the Court emphasized, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. The Cabinet violated KRS 61.880(1) in failing to provide any explanation of how the cited exceptions applied to records being withheld. See 16-ORD-039. However, the Cabinet cured this deficiency from a procedural standpoint on appeal by providing the records in dispute for in camera review by this office per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and then attempting to justify its reliance on KRS 61.878(1)(a), though KRS 61.878(3) overrides that exception here. See 07-ORD-018 (agency erred in relying upon KRS 61.878(1)(a) as the basis for denying request by agency employee for documents that related to him as KRS 61.878(3) was controlling).
Resolution of this appeal turns upon the language of KRS 61.878(3), pursuant to which:
No exemption of 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 and records 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 copy any examination or documents relating to ongoing criminal or administrative investigations by an agency.
In construing this provision, the Attorney General has long recognized:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. . . . When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency.
95-ORD-97, p. 4; 98-ORD-114. The Cabinet has not alleged that its "internal Personnel investigation" is ongoing.
As a public agency employee (Federal Program Coordinator), Ms. Elliston is endowed with a broader right of access to records relating to her than the general public has to those same records. Even records which would otherwise be shielded from disclosure under KRS 61.878(1)(a), (i) or KRS 61.878(1)(j), as to third persons, must be made available to Ms. Elliston if those records relate to her as none of the specified exceptions to KRS 61.878(3) apply here. 14-ORD-134, p. 7; 05-ORD-181 (letter that was otherwise shielded from disclosure by KRS 61.878(1)(j) as to general public had to be made available to Sheriff and his staff "if it, in fact, 'relate[d]' to them, notwithstanding the inconvenience or embarrassment that disclosure may entail"); 10-ORD-177. In the absence of an ongoing criminal or administrative investigation, 2 KRS 61.878(3) is controlling here as KRS 61.878(1)(k), incorporating the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d-2, into the Open Records Act, simply does not apply here. HIPAA's Privacy Rule only applies to covered entities. 3 05-ORD-054, p. 12. In addition, this office "has repeatedly ruled that HIPAA does not preempt the Kentucky Open Records Act. " 14-ORD-113, p. 9, citing 08-ORD-166. See 09-ORD-209 ("public agencies that are 'covered entities' must disclose 'protected health information' under the 'required by law' exception to the HIPAA Privacy Rule to the extent disclosure is required by the Kentucky Open Records Act" ). Because the Cabinet is not a "covered entity" within the meaning of 45 CFR § 160.103, further discussion of HIPAA is unwarranted. 4
In 05-ORD-181, this office clarified the meaning of "relates" in this context as follows:
For purposes of contrast, we note that the term "relates" found in KRS 61.878(3), and relating to a public employee's right of access to otherwise exempt public records, is far more expansive in its scope than the term "contains a specific reference to" found in KRS 197.025(2) and restricting an inmate's right of access to public records in which his name appears. See, 04-ORD-086 and authorities cited therein. The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary , 1173 (4th ed.), and does not always require specific references in the form of a name . To the extent that the contents of the letter relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it.
05-ORD-181, pp. 5, 6 (emphasis added); 06-ORD-014. The Cabinet maintains that all of the documents "predominantly" relate to another employee and only reference Ms. Elliston in "very limited ways." Although our in camera review of those documents (a total of 10 pages), conducted under authority of KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, confirmed that neither the June 9, 2017, e-mail of record nor the July 6, 2017, memorandum directed to Ms. Thompson "relates" to Ms. Elliston, it also confirmed that a February 20, 2016, memorandum, which Ms. Thompson sent to her Executive Director and the Chief of Staff, not only relates to Ms. Elliston but specifically references her. Likewise, the March 19, 2015, e-mail provided references Ms. Elliston by her first name. Accordingly, the Cabinet violated the Open Records Act in denying Ms. Elliston's request entirely instead of separating any protected material and providing the remainder in accordance with KRS 61.878(4). See 16-ORD-153 (KRS 61.878(3) prevailed over any other statutory exceptions relative to any records that related to requester, an employee of Jefferson County Public Schools, "including those generated in the investigation of [another JCPS employee's] grievance" within the relevant time frame). Ms. Elliston is entitled to access the February 2016 memorandum and the March 2015 e-mail.
In asking the Cabinet to provide unredacted copies of the records in dispute for in camera review per KRS 61.880(2)(c), including the final action of the Cabinet regarding the subject investigation, this office also requested that Mr. Henderson "explain the basis for the Cabinet's apparent denial of the 'outcome of the investigation,' i.e. , final action. " The Cabinet provided a document entitled, "Memorandum of Expectations," which Mr. Henderson observed was "addressed to Amy Thompson" and "was drafted by her management to address employee responsibilities." However, the Cabinet advised the document "should not be considered the final result of any formal investigation by the Cabinet's Personnel Office," as "[t]here was no formal outcome in this investigation, the circumstances were informally reviewed but no action was taken." Based upon the following, this office respectfully disagrees with its characterization of that document.
Neither the courts nor this office has recognized a distinction between formal and informal complaints or formal and informal action. 02-ORD-75, p. 6, n. 3. See Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983); 99-ORD-79. Significantly, in Palmer v. Driggers, 60 S.W.3d 591, 597 (Ky. App. 2001)(incorporating City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982) analysis focusing on final action as the event which results in forfeiture of investigative records' preliminary character, but rejecting police officer's argument that his resignation precluded final action) , the Court adopted the reasoning found in 00-ORD-107, holding, "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by [the employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." See 10-ORD-075 (the final action of the agency was the decision to take no action, i.e. , that no investigation was necessary); 10-ORD-053; 12-ORD-055; 15-ORD-143. When viewed in light of these authorities, the Memorandum of Expectations that was given to Ms. Thompson appears to constitute the "outcome" that Ms. Elliston requested, i.e. , the only action deemed necessary by the Cabinet regarding the subject investigation, whether the investigation or the action is characterized as "formal" or "informal. " Although KRS 61.878(3) does not vest Ms. Elliston with a greater right of access to it, any requester, including Ms. Elliston, is entitled to access the final action of a public agency, including what is apparently the only existing responsive document reflecting the resolution of the Cabinet's review/investigation.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In Kentucky Board of Examiners v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The Court of Appeals refined the standard of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994), holding that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy[,]'" a determination which "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Zink at 828 (citation omitted). See Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required); compare Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials of but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest/incident reports).
2 Although the right of access granted to public agency employees by KRS 61.878(3) overrides the remaining exceptions codified at KRS 61.878(1) when the employee requests access to records that relate to her, the concluding sentence of KRS 61.878(3) suspends this right while the employee is the subject of an ongoing investigation. 98-ORD-114; 93-ORD-74. Said another way, KRS 61.878(3) generally requires a public agency to release otherwise exempt records to a public agency employee; however, "where the employee is under investigation and the documents relate to that investigation, the request can properly be denied." 95-ORD-97, p. 2(emphasis added). See 93-ORD-19; 93-ORD-24; 95-ORD-97.
3 Upon enacting HIPAA, Congress directed the United States Department of Health and Human Services to promulgate regulations establishing national privacy standards for the security and privacy of health information. HHS complied with this directive in the Standards for Privacy of Individually Identifiable Health Information, also known as the "Privacy Rule." 42 U.S.C. § 1320d-2;45 CFR §§ 160, 164. In general, the Privacy Rule prohibits the use or disclosure of protected health care information by a covered entity except as expressly permitted or required by the Rule. Id. at § 1320d-2; 45 CFR §§ 160, 164. The Privacy Rule applies only to the "covered entities" defined at 45 CFR § 160.103.
4 Pursuant to 45 CFR § 160.103, "Covered entity" means:
(1) A health plan.
(2) A health clearinghouse.
(3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter.