Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Labor Cabinet Kentucky ("the Cabinet") violated the Open Records Act in denying reporter Eleanor Klibanoff's request for records relating to complaints of sexual harassment. For the reasons stated below, we find that the Cabinet corrected most of its initial errors in withholding portions of records, but erred in not releasing the name of the alleged harasser, even though the Cabinet could not substantiate the allegation of sexual harassment.
By letter dated November 1, 2017, to the Cabinet, Eleanor Klibanoff, Kentucky Center for Investigative Reporting, requested to inspect:
-All complaints made by state employees to your agency, or an agency under your jurisdiction, related to sexual harassment, sexual discrimination or sexual assault since 1/1/2012[;]
- Any/all summaries of internal investigations and the resolution of those investigations[;]
-Any/all records of settlements related to these complaints[;]
-Reports detailing any/all disciplinary action taken in response to complaints, including but not limited to actions against the complainant and the subject of the complaint.
On behalf of the Labor Cabinet, Michael G. Swansburg, Jr., General Counsel, responded to Ms. Klibanoff on November 21, 2017. The Cabinet's response provided records regarding a 2015 allegation of sexual harassment, but denied portions of those records based on the exemptions at KRS 61.878(1)(a) 1, the personal privacy exemption, and KRS 61.878(1)(i) 2, which allows a public agency to withhold "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [. ]" Under KRS 61.878(1)(a), the Cabinet redacted "information such as names, titles, signatures, phone numbers, and personnel numbers of any person who complained of harassment, any person alleged to have harassed a co-worker, and/or the immediate supervisor(s) for each ? ." The Cabinet cited KRS 61.878(1)(i) as the basis for withholding what it considered draft versions of occupational safety and health inspection reports, including handwritten notations and edits. Likewise, multiple pages consisting of handwritten and typed notes compiled by Cabinet officials during the course of the investigation into the allegation of harassment were withheld as preliminary records. The Cabinet further explained that it was in the process of locating other records from a 2016 allegation of sexual harassment, and that those records would be produced by November 29, 2017.
The Cabinet subsequently provided records relating to that 2016 allegation, but redacted, pursuant to the personal privacy exemption, information such as names, addresses, personnel numbers, titles, Social Security numbers, salary, employee identification numbers, and e-mail addresses of "any person who complained of harassment and any person who was alleged to have harassed the complaining party" where "the claim of harassment could not be substantiated. " The Cabinet also initially withheld three pages of responsive records on the basis of "attorney-client privilege and/or work-product doctrine."
Ms. Kate Howard, Kentucky Center for Investigative Reporting ("Appellant"), appealed the Cabinet's responses, asserting that the Cabinet improperly withheld pieces of information about the alleged harassers and complainants, including the name of the alleged harassers.
On January 16, 2018, after the initiation of this appeal, the Cabinet provided additional records 3 that had previously been redacted, but continued to withhold "personal cell phone numbers, personal email addresses, personnel numbers, Social Security Numbers, employee ID numbers, as well as the names of any person who complained of harassment and any person who was alleged to have harassed the complaining party where the personnel of the Office of General Administration and Program Support for Shared Services (GAPS) determined that the claim could not be substantiated. " The Labor Cabinet provided the records relating to the 2015 incident and, in this production of records, did not redact the name of the accused harasser.
On January 18, 2018, the Cabinet responded to the appeal by providing all of the records it previously produced to Ms. Klibanoff and Ms. Howard, and asserting that the Labor Cabinet is not required to disclose the identities of persons who complain about sexual harassment, nor provide the identities of "those who are accused of sexual harassment but ultimately are vindicated." Appellant requested that this Office find that the Labor Cabinet violated the Open Records Act by redacting the names, job title, and salaries of the accused and accuser in the 2015 and 2016 cases. On January 31, 2018, this Office requested to review the unredacted records responsive to Ms. Klibanoff's request. The request was for an in camera review under the authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and those records were provided on February 15, 2018. Our review of the records determined that the information redacted from the 2015 records is the name and cell phone number of the complainant, and the personnel number of the harasser. For the 2016 records, the Cabinet redacted the name, personnel number, Social Security number, email address, job identification number, position identification number, and address of the alleged harasser, and the name, title, and employer of the complainant.
Identity of Alleged Harasser . The Cabinet takes the position that, as the harassment allegations could not be substantiated in the 2016 incident, the name and certain identifying information of the alleged harasser, as well as that of the complainant, are not releasable pursuant to KRS 61.878(1)(a); in other words, that the privacy interest of the alleged harasser should outweigh the public interest in knowing his identity because he was absolved of the allegation. We disagree with the Cabinet as to the release of the alleged harasser's name.
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of misconduct, in various factual contexts. Although we are mindful of the principle that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 327, 328 (Ky. 1992), we have generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. This applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action will evidence whether the public agency faithfully discharged its duties.
97-ORD-121, p. 8. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] ? , if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p. 7. 4
Consistent with the principles set forth above, we find that the Cabinet is obligated to disclose the name of the alleged harasser from the 2016 incident because the Cabinet determined that the allegations were unsubstantiated. This decision comports with the statement of legislative policy codified at KRS 61.871, recognizing that "free and open examination of public records is in the public interest ? even though such examination may cause inconvenience or embarrassment to public officials or others."
Identity of Complainant . In 99-ORD-39 this office held that although records relating to allegations of sexual harassment leveled against a public employee were generally accessible, the agency was permitted to:
take reasonable steps to protect the identity of the complainant by masking her name, and any personally identifiable information, which appears in the complaint, investigative report, and reprimand along with the names of other complainants and witnesses . . . [The public's interest would not] be served by disclosure of this information, and . . . the complainants' strongly substantiated privacy interests are clearly superior.
99-ORD-39, p. 13; Accord , 96-ORD-98; 98-ORD-45; 05-ORD-177. In each of these decisions, the Attorney General recognized that "sexual harassment complaints are of a uniquely sensitive nature," and extended protection to the complainants' identities on the facts presented. In balancing the privacy interests of the complainant against the public interest in knowing how an agency is performing its functions, we believe that protection of a complainant's identity can also hold, as in this instance, even where a complaint of sexual harassment is not substantiated. Under the facts of this appeal, we uphold the Cabinet's redaction of the name of the complainant, and the complainant's employer as it could potentially lead, with the other information in the records, to the identification of the complainant.
Regarding the release of the personnel number, Social Security numbers, job identification number, home address, personal email address, and position identification number of employees, this Office has determined that KRS 61.878(1)(a) allows an agency to withhold personal and private information including social security numbers (95-0RD-151); employee identification numbers (09-0RD-049); cell phone numbers (12-ORD-116), private email addresses (07-ORD-120) and home addresses (07-ORD-192). Under the facts of this appeal, we find that the Cabinet properly withheld the personally identifying information of all employees involved in the allegations.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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