18-ORD-059
March 21, 2018

In re: Kate Howard/Kentucky Labor Cabinet
Summary: Kentucky Labor Cabinet violated the Open
Records Act by withholding the name of employee whose
alleged sexual harassment of a co-worker was not
substantiated upon investigation. The public’s interest in
monitoring agency action outweighed the privacy interest
of the employee who was exonerated of misconduct.
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 Klibanof’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
Klibanof, Kentucky Center for Investigative Reporting, requested to
inspect:

 18-ORD-059
Page 2

-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. Klibanof 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.
1

KRS 61.878(1)(a) allows a public agency to withhold: “Public records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy[.]”
2
KRS 61.878(1)(i) allows a public agency to withhold: “Preliminary drafts, notes,
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency[.]”

 18-ORD-059
Page 3

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 records3 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. Klibanof and
Ms. Howard, and asserting that the Labor Cabinet is not required to
3

The Cabinet produced hand-written and typed notes compiled by Cabinet officials
during the course of the investigation into the allegation. As with other records
regarding this matter from 2015, the name of the complainant was redacted from the
draft reports and notes. The Cabinet also produced the draft notes of occupational
safety and health inspections that were relevant to the 2015 harassment allegation.

 18-ORD-059
Page 4

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.
Klibanof’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

 18-ORD-059
Page 5

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 efectively
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
4

As stated in Kentucky Bd. of Examiners, supra., “the question of whether an
invasion of privacy is ‘clearly unwarranted’ is intrinsically situational, and can only be
determined within a specific context … .” We recognize that in some rare instances,
an allegation of sexual misconduct may not result in records indicating whether the
allegation was substantiated or unsubstantiated. The analysis in that context may
weigh in favor of nondisclosure of the identity of the alleged harasser, because there
would neither be a determination about whether the alleged harasser committed
harassment, nor a vindication of the allegations.

 18-ORD-059
Page 6

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 (950RD-151); employee identification numbers (09-0RD-049); cell phone
numbers (12-ORD-116), private email addresses (07-ORD-120) and

 18-ORD-059
Page 7

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.
Andy Beshear
Attorney General

Gordon Slone
Assistant Attorney General
#18
Distributed to:
Kate Howard
Michael G. Swansburg, Jr.