18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION I CIVIL ACTION NO. 18-CI-335 COMMONWEALTH OF KENTUCKY, FINANCE AND ADMINISTRATION CABINET v. PLAINTIFF OPINION & ORDER KENTUCKY PUBLIC RADIO, INC. d/b/a KENTUCKY CENTER FOR INVESTIGATIVE REPORTING DEFENDANT This matter is before the Court on Cross-Motions for Summary Judgment. The parties appeared before the Court on October 3, 2018 to argue the matter. Cary B. Bishop appeared on 2543CE67-0B48-4C64-A78B-014C80712710 : 000001 of 000015 Entered behalf of the Finance and Administration Cabinet (“Cabinet”), and Michael Abate and Cassie Chambers appeared on behalf of the defendant, Kentucky Public Radio, Inc. d/b/a Kentucky Center for Investigative Reporting (“KCIR”). Accordingly, having considered the arguments of counsel and being otherwise sufficiently advised, the Court hereby GRANTS KCIR’s Motion for Summary Judgment and DENIES the Cabinet’s Motion for Summary Judgment, for the reasons set forth below. BACKGROUND On November 3, 2017, KCIR submitted a request to the Cabinet under the Kentucky Open Records Act, seeking complaints, investigations, settlements, and disciplinary outcomes related to • • • 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 1/1/12 Any/all summaries of internal investigations and the resolution of those investigations Any/all records of settlements related to these complaints Page 1 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000001 of 000015 complaints of sexual misconduct in the workplace. Specifically, KCIR requested: 18-CI-00335 • 10/12/2018 Amy Feldman, Franklin Circuit Clerk 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. See Compl. Ex. A. The Cabinet’s Public Information Officer responded on November 9, 2017, informing KCIR that the Cabinet required additional time to comply with the request due to the large number of records involved. The Cabinet continued to update KCIR on its progress and ultimately informed KCIR that the records would be ready around mid-January. See Compl. Ex. B. However, the Cabinet failed to produce the records by that time. As a result, on January 29, 2018, KCIR submitted an Open Records Act appeal to the Office of the Attorney General (“OAG”), solely on 2543CE67-0B48-4C64-A78B-014C80712710 : 000002 of 000015 Entered the issue of whether the Cabinet’s delay in production was reasonable. The OAG advised the Cabinet that it could file its response on or before February 6, 2018. Upon receiving notice of the appeal, the Cabinet contacted KCIR, and the parties attempted to resolve the matter. A representative for KCIR agreed to voluntarily dismiss the appeal of the timeliness issue if the Cabinet could produce the requested documents by the February 6th response deadline. The parties also agreed that KCIR retained the right to appeal any claimed exemptions. For example, the Cabinet explained, it would redact the names of the accused if the claim was unsubstantiated under the Act’s personal privacy exemption. It would also redact the names of witnesses and other identifying personal information regardless of whether the claims were substantiated. on February 6, 2018. The records consist of thirty (30) complaints received by the Cabinet related to sexual harassment, sex/gender discrimination, and sexual assault. No such complaint was completely withheld; rather, the Cabinet redacted certain information including: the names of Page 2 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000002 of 000015 Following its informal agreement with KCIR, the Cabinet provided the redacted documents 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk complainants, accused parties (if the claim was unsubstantiated), witnesses, human resource representatives, and other individuals who were named in the complaints but provided no testimony or other information relevant to the investigation; email addresses; home addresses; work and office locations; personal phone numbers; work phone and fax numbers; employee identification and personnel numbers; job titles; and information protected by HIPPA or the attorney-client privilege. This information was redacted regardless of whether the Cabinet’s investigation substantiated the complainant’s claim, with the exception of the accused party’s name, which was released only if the claim was substantiated. For each redaction, the Cabinet relied upon the personal privacy exemption of the Kentucky Open Records Act.1 See KRS 2543CE67-0B48-4C64-A78B-014C80712710 : 000003 of 000015 Entered 61.878(1)(a). That same day, the Cabinet informed the OAG that it had produced the documents and the timeliness issue would be voluntarily dismissed by KCIR. Shortly thereafter, KCIR contacted the OAG, acknowledging that the timeliness issue was now moot and seeking advice on how to properly appeal the issue of whether the exemptions were correctly claimed. Apparently, the OAG continued the appeal on that substantive issue and requested that the Cabinet provide the records for an in camera review pursuant to KRS 61.880. See Compl. Ex. D. The Cabinet declined to produce the records. As a result, the OAG issued Open Records Decision 18-ORD-048 on February 28, 2018, in which the OAG concluded that the Cabinet failed to meet its burden of proving that the personal privacy exemption was properly claimed. The Cabinet thereafter 1 For information protected by the attorney-client privilege, the Cabinet also cited Kentucky Rule of Civil Procedure (“CR”) 26.02. Page 3 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000003 of 000015 instigated this appeal. 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk STANDARD OF REVIEW Pursuant to KRS 61.882(3), this Court reviews the decision of the Attorney General de novo. Thus, this Court may grant summary judgment only if it first concludes that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See CR 56.03. However, the Court notes that an Attorney General’s opinion, while non-binding, is “highly persuasive.” York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991) (citation omitted). Regardless, the Court ultimately must decide Open Records Act disclosure issues on a case-by-case basis. See, e.g., Kentucky Bd. of Exam’rs. of Psychologists v. Courier Journal & Louisville Times Co., 826 S.W.2d 324, 327–28 (Ky. 1992). 2543CE67-0B48-4C64-A78B-014C80712710 : 000004 of 000015 Entered ANALYSIS I. The OAG properly sought access to the unredacted documents for purposes of conducting an in camera review. KRS 61.880(2)(a) provides the OAG with the authority to review a public agency’s denial of an Open Records Act request upon appeal of the complaining party. The statute also authorizes the OAG to request additional documentation to substantiate the agency’s position. Specifically, KRS 61.880(2)(c) states, “The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.” KRS 61.846 similarly states, “In arriving at the decision, the Attorney (requiring destruction of materials after OAG reaches decision). Thus, the OAG is authorized to request the disputed documents for purposes of conducting an in camera review. Page 4 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000004 of 000015 General may request additional documentation from the agency.” See also KAR 1:030 Section 3 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk In this case, the OAG requested that the Cabinet provide the documents for an in camera review, and the Cabinet refused. KCIR now argues that compliance with the OAG’s request was mandatory. This conclusion is supported by the OAG’s recent Open Records Act decision, 18ORD-179, issued on September 19, 2018. In that case, the Cabinet for Health and Family Services (“CHFS”) relied upon the same personal privacy exemption to redact certain information in records related to the resignation of one of its employees. The redacted information included the names of alleged perpetrators and witnesses interviewed in the investigation of unsubstantiated claims, as well as information that could reasonably lead the reader to identify those individuals. The OAG asked the CHFS to provide unredacted copies of the disputed records for purposes of 2543CE67-0B48-4C64-A78B-014C80712710 : 000005 of 000015 Entered conducting an in camera review. The CHFS declined to provide the documents, explaining that it interpreted KRS 61.880(2)(c) to be permissive, rather than mandatory, primarily because the statute lacks an enforcement mechanism. The OAG disagreed, explaining that “KRS 61.880(2)(c) vests the Attorney General with discretion as to whether such a request is necessary under the circumstances presented in a particular appeal, whereas compliance by the agency is mandatory.” 18-ORD-179, p. 6. In support of this conclusion, the OAG compared the General Assembly’s use of the permissive “may” and mandatory “shall” within that statute. For example, the statute provides that “the burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney 61.880(2) (emphasis added). Furthermore, 40 KAR 1:030(3) provides that “the Attorney General shall not disclose [the requested records] and shall destroy the copies at the time the decision is rendered.” (Emphasis added.) Thus, the OAG held that its decision to request production of the Page 5 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000005 of 000015 General may also request a copy of the records involved but they shall not be disclosed.” KRS 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk documents is a matter of discretion, while other actions are mandatory: the agency’s production of said documents to substantiate its claim; the OAG’s confidential inspection of those records; and the OAG’s subsequent destruction of any copies. Furthermore, while the CHFS in that case argued that the statute lacks a specific enforcement mechanism, the penalty for failing to comply is clear: “a public agency cannot otherwise satisfy its burden of proof, and therefore loses the appeal.” See 18-ORD-179, p. 8. This Court disagrees, in part, with this analysis. KRS 61.880 does employ the term “shall” to indicate that certain actions are mandatory. For example, the OAG cannot disclose the documents and must destroy them after reaching its decision. However, the statute does not 2543CE67-0B48-4C64-A78B-014C80712710 : 000006 of 000015 Entered expressly indicate that the state agency has a mandatory duty to produce requested documents to the Attorney General for an in camera review. Instead, it places the burden of proof on the withholding agency; that agency is then vested with discretion in deciding how it will meet that burden. Thus, this Court does not agree that compliance with the OAG’s request for documents is mandatory under KRS 61.880. However, if the OAG requests the documents “for substantiation” as contemplated by KRS 61.8802 and the agency refuses to turn over such documents, the OAG properly may find that the agency failed to meet its burden. Therefore, because the withholding agency bears the burden of proof in an Open Records Act appeal to the OAG, this Court agrees that refusal to comply with 2 Though Plaintiff implies that the OAG must first explain why an in camera review is necessary, the statute requires no such explanation. Instead, it clearly authorizes the OAG to request the documents for in camera review when the OAG, in its discretion, determines that an in camera review is necessary “for substantiation” of the agency’s claims. Page 6 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000006 of 000015 the OAG’s request for documents authorizes the OAG to rule against the agency, absent a clear 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk error of law.3 Simply put, if a public agency rejects a reasonable request for in camera review by the OAG under KRS 61.880, it assumes the risk that the OAG will rule against it, and that the Court will sustain that holding by the OAG and impose costs and attorney’s fees under KRS 61.882. Here, the request by the OAG for internal review of the disputed records was manifestly reasonable. The decision to withhold the documents from the OAG was likely fueled in part by the procedural confusion surrounding the appeal. However, the Cabinet has also accused the OAG of “blur[ring] the line between its intended role as a disinterested and neutral adjudicator, and that of litigant.” Mot. Summ. J. 5. On this point, the Court notes that the OAG was expressly authorized 2543CE67-0B48-4C64-A78B-014C80712710 : 000007 of 000015 Entered by statute to make its request. The attorneys employed by that office remain duty-bound to impartially decide the matters before them, and the Open Records process has historically been guided by the principles of professionalism, rather than politics. Here, the OAG properly exercised its discretion and authority to request unredacted copies of the records at issue, and it was dutybound to confidentially and impartially inspect (and then destroy) those copies. There is no basis for this Court to find that the OAG would violate these duties. The Cabinet, on the other hand, bore the burden of substantiating its claims of exemption, yet it refused to comply with the OAG’s reasonable request. Accordingly, in the present case, the OAG properly found that the Cabinet failed to satisfy its burden of proving that the documents were properly redacted. In any case, appeals from the OAG’s Open Records Act decisions are reviewed by this and it is appropriate to review the records to determine whether the Cabinet properly withheld 3 For example, if a requester sought personal information such as home addresses and social security numbers of public employees, the agency could defend its denial as a matter of law without producing the documents to the OAG. The OAG’s request for documents review must be objectively reasonable, as it was in this case. Page 7 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000007 of 000015 Court de novo. See KRS 61.882(3). Thus, this Court’s decision is not limited to the record below, 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk these documents. The Cabinet readily submitted the redacted records and has indicated its willingness to submit unredacted copies for the Court’s review. However, the redacted information appears to include names, job titles, locations, medical information, and similar material, and each redaction is clearly labeled (e.g., “Witness 1,” “Workplace Location,” “Job Title”). Thus, the Court need not review the unredacted versions to determine whether the redacted information falls within the claimed exemptions.4 II. The Cabinet improperly redacted certain identifying information under the Act’s personal privacy exemption. Kentucky’s Open Records Act “seeks to ensure the free and open examination of public 2543CE67-0B48-4C64-A78B-014C80712710 : 000008 of 000015 Entered records.” Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 821 (Ky. 2008). Thus, the Act ensures that public records may be freely inspected by any person, unless otherwise expressly exempt from disclosure. See KRS 61.872(1). This reflects the “basic policy” of the Act “that free and open examination of public records is in the public interest.” KRS 61.871. The Supreme Court of Kentucky has elaborated further, stating, “The public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to expect its agencies properly to execute their statutory functions.” Kentucky Bd. of Exam’rs., 826 S.W.2d at 328. Thus, “inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.” Id. Thus, the Act “exhibits a general bias favoring disclosure,” or simply put, a presumption However, KRS 61.878 enumerates specific exemptions, thereby protecting certain types of 4 Though the Court has, in its discretion, determined that it is unnecessary to review the unredacted copies for purposes of this appeal, it does not second guess the OAG’s exercise of its own discretion in determining that it needed to conduct an in camera review of those documents. Had the agency complied with the OAG’s request, the need for litigation may have been avoided. Page 8 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000008 of 000015 that the requested documents must be disclosed. Kentucky Bd. of Exam’rs., 826 S.W.2d at 327. 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk documents from public inspection in the absence of an appropriate court order. Given the presumption in favor of disclosure, these exemptions must be strictly construed, even though disclosure of the documents “may cause inconvenience or embarrassment to public officials or others.” KRS 61.871. Accordingly, the agency seeking to withhold the requested information bears the heavy burden of proving the applicability of an exception. See KRS 61.882(3). At issue in the present suit is the “personal privacy exemption,” which allows a public agency to withhold “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” KRS 61.878(1)(a). To apply this exemption, the Court must first determine that the information at issue 2543CE67-0B48-4C64-A78B-014C80712710 : 000009 of 000015 Entered is “of a personal nature.” Zink v. Dep’t of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. Ap. 1994). If the requested information is of a personal nature, the Court must then balance the competing interests, namely, the privacy interest in nondisclosure of the personal information and the public’s right to inspect whether its agencies are properly performing their public functions. Id. The information at issue consists here of the names of the complainants and accused parties, as well as the names, contact information, job titles, and locations (including home and work addresses) of various individuals, including the complainants, alleged perpetrators, and witnesses. The primary actors and witnesses are public employees, and all conduct involved took place in the public workplace. The Court acknowledges that some of this information, in other contexts, may be considered information of a personal nature as contemplated by the Act’s privacy interests involved in nondisclosure of such information, as well as the public interest in disclosure. Page 9 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000009 of 000015 personal privacy exemption. Having made that determination, the Court must next consider the 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk On this point, both parties reference Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky. App. 2009). In that case, a reporter sought a closed police case file involving an alleged, but apparently unprosecuted, rape. The Court of Appeals acknowledged that the public had a legitimate interest in monitoring police conduct and ensuring that investigations were handled fairly and without bias. Id. at 586. However, the Court found that disclosing the identity of the suspect, a public figure, would likely cause scorn, ridicule, and harassment for that individual. Id. at 585. Thus, the personal privacy interest outweighed the public interest in that case, and the exemption was properly applied. This case is distinguishable from the Lexington H-L Services case. Here, the accused 2543CE67-0B48-4C64-A78B-014C80712710 : 000010 of 000015 Entered parties whose names are redacted have been exonerated by the Cabinet’s investigation. Thus, any concerns that the accused individuals might suffer scorn, ridicule, and harassment are greatly diminished, if not eliminated. In fact, as the Attorney General has previously noted, a falsely accused public employee will find vindication in the disclosure of the very records that declare the claims to be unsubstantiated. See 18-ORD-059. Moreover, unlike the Lexington H-L Services case, this request concerns misconduct of public employees in the public workplace, not alleged felony offenses of a private party. Against this vastly diminished privacy interest, the Court must balance the public’s right to inspect these records. In doing so, the Court takes notice that, “[a]t its most basic level, the purpose of disclosure focuses on the citizens’ right to be informed as to what their government is materials, the public can discern whether the Cabinet—a publicly-funded state agency— effectively investigates and addresses the misconduct of its employees. This provides insight into the behavior of government employees, as well as the efficiency and productivity of our state Page 10 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000010 of 000015 doing.” Zink, 902 S.W.2d at 828. For example, through disclosure of complaints and investigation 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk workplaces. Perhaps more importantly, it ensures that investigations are handled competently and without favoritism. The Court therefore finds that under the circumstances of this case, the public interest outweighs the minimal privacy interests of the exonerated individuals. In reaching this conclusion, the Court notes that records involving allegations of workplace sexual misconduct in a public agency—involving employees working “on the clock” and paid by tax dollars—must be characterized as presumptively public. If the allegations are substantiated, the public has a right to know if discipline has been properly administered. If the allegations are unsubstantiated, the public has a right to know if the internal investigation was thorough, unbiased, and competent, or whether it was a “cover up” of misconduct based on personal or political 2543CE67-0B48-4C64-A78B-014C80712710 : 000011 of 000015 Entered favoritism. If there is a persistent problem with unsubstantiated allegations in a public workplace, that in itself is a legitimate matter of public concern and raises questions about the personnel management practices and efficiency of the public agency. Moreover, this Court can take judicial notice that many incidents of sexual misconduct in the workplace, which were never “substantiated” through an internal review, nevertheless have resulted in litigation in this Court that has imposed significant costs in time, defense fees, and judgments that have been borne by the taxpayers. See, e.g., Booker v. Department of Workers Claims, Franklin Circuit Court, Division 1, Civil Action No. 13-CI-1467; Heyman v. Kentucky Public Protection Cabinet, Franklin Circuit Court, Division 2, Civil Action No. 15-CI-1179. In the present case, the Court has reviewed the records provided by the agency and finds that they document a shocking lack of In redacting these complaints, the Cabinet essentially employed the Act’s personal privacy exemption to create a categorical redaction policy for information related to unsubstantiated allegations. Courts in other cases has approved a narrow list of categorical exemptions based on Page 11 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000011 of 000015 efficiency and appropriate management regarding some of the claims of workplace harassment. 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk privacy concerns, such as the names of third-party citizen reporters, the names of juveniles, protected health information, and personal identifiers (such as social security numbers, home addresses, or public assistance information). See Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 88–89 (Ky. 2013); Courier-Journal and Lexington H-L Servs., Inc. v. Cabinet for Health and Family Servs., No. 11-CI-141, Opinion and Order, Dec. 23, 2013, aff’d Cabinet for Health and Family Services v. Courier-Journal, 415 S.W.3d 375 (Ky. App. 2016). The Court will recognize those same redactions here but believes that the Cabinet’s expansion of this list is unjustified, and that other assertions of “privacy” must be reviewed on a case-by-case basis, with the burden on the Cabinet to show specific factual support for such claims. No such case-specific 2543CE67-0B48-4C64-A78B-014C80712710 : 000012 of 000015 Entered factual basis has been offered for the redactions in this matter. The Court believes this approach is required by the Kentucky Supreme Court in Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013) and Lawson v. Office of Attorney General, 415 S.W.3d 59 (Ky. 2013). In those cases, the Kentucky Supreme Court considered whether the personal privacy exemption covered personal information contained within certain law enforcement records. In Lawson, for example, the records consisted of a proffer of evidence related to Lawson’s involvement in “rigged” highway construction contracts with the state Department of Transportation. The Court acknowledged that “mere association with [law enforcement records] can be embarrassing and stigmatizing, if not worse,” and “even persons convicted of crimes may retain some privacy interest in the related records.” 415 S.W.3d at 69– individual’s dealings with an agency do significantly implicate how the agency is carrying out its functions or exercising its discretion, we have not hesitated to find that privacy interests must yield to the public’s right to know what its government is up to.” Id. at 70. In that case, Lawson’s proffer Page 12 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000012 of 000015 70. However, the Court explained, a substantial countervailing public interest exists: “[W]here an 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk provided insight into the conduct (or potential misconduct) of two state agencies in a “bidding conspiracy.” Id. at 71. The Court found that this interest outweighed Lawson’s privacy interests, thereby warranting disclosure. Similarly, in Kentucky New Era, the Court found that “[W]here the disclosure of certain information about private citizens sheds significant light on an agency’s conduct, we have held that the citizen’s privacy interest must yield.” 415 S.W.3d at 86; see also Cape Productions, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 823 (Ky. 2008) (“As a public institution that receives taxpayer dollars, the public certainly has an interest in the operation and administration of the [public institution].”). Of course, the Court acknowledges that the sensitive nature of these complaints may cause 2543CE67-0B48-4C64-A78B-014C80712710 : 000013 of 000015 Entered the complainant and others embarrassment or discomfort if the details are made public. As our Supreme Court explained in Cape Productions, Inc. v. City of Louisville, 147 S.W.3d 731 (Ky. 2003), victims of sexual crimes often need to avoid public exposure as they cope with the physical and psychological trauma of the crime. In that case, the Court found that this privacy interest outweighed the public’s interest in monitoring law enforcement’s investigations of such crimes. Thus, the names and identifying information of victims of sexual crimes could be redacted from police reports under KRS 61.878(1). Unlike the present case, however, the Cape Productions case involved the reporting of violent crimes against private citizens. Here, public employees have reported the workplace misconduct (not criminal charges) of their colleagues, and those matters were internally 5 The Court notes that a public employee aggrieved by an unlawful act in the workplace may file a complaint with Kentucky’s Commission on Human Rights under KRS 344.200, after which the Commission determines whether probable cause supports the complainant’s allegations. There is therefore an impartial and external review process available, yet these matters are routinely handled within the agency, raising concerns of impartiality. Of the complaints submitted in this case for in camera review, several suggested that the perpetrator believed he or she could use their internal connections to avoid discipline. Page 13 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000013 of 000015 investigated.5 The conduct of public employees in the public workplace, on the taxpayer’s dime, 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk is a matter of legitimate public interest, and the transparency required by the Open Records Act is the primary safeguard to ensure public accountability. This public interest outweighs the privacy interests of the complainants, witnesses, and other involved individuals. In addition, this issue is directly addressed in the Open Records Act, which explicitly provides that all exceptions to public disclosure “shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” KRS 61.871. In the present case, there may be specific allegations of misconduct that implicate the privacy interests of a complaining witness, but the Court finds no personal or private information in the documents submitted for in camera review that would possibly outweigh the public interest in disclosing said documents. 2543CE67-0B48-4C64-A78B-014C80712710 : 000014 of 000015 Entered Furthermore, it is in the best interests of all concerned that public agencies be open and transparent in dealing with allegations of workplace misconduct. The taxpaying public deserves an opportunity to review these matters and hold these agencies accountable for their investigations. As noted above, the disclosure of the complaints and investigative materials allows the public to determine whether these investigations are being handled in an efficient, fair, and effective manner. This not only ensures that our publicly-funded agencies are efficiently and competently managed, but also protects the individual state employees who may be subjected to sexual harassment, assault, or discrimination in the workplace by ensuring that complaints of such misconduct are thoroughly and fairly investigated. This public interest outweighs the subjective desire of affected individuals to remain anonymous. complainants, accused parties (in cases of unsubstantiated claims), witnesses, and involved individuals under the Act’s personal privacy exemption. The public identifying information of these individuals (e.g., job title or work station) was also improperly withheld. Personal identifiers Page 14 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000014 of 000015 Accordingly, this Court finds that the Cabinet improperly withheld the identity of the 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk (such as private cell phone and home phone numbers, personal email addresses, and home addresses), as well as information otherwise protected by HIPPA and the attorney-client privilege, may be properly redacted. CONCLUSION For the reasons set forth above, the Court GRANTS KCIR’s Motion for Summary Judgment and DENIES the Cabinet’s Motion for Summary Judgment. Accordingly, this Court AFFIRMS the decision of the Attorney General in 18-ORD-048 and ORDERS that updated copies of the record be released to KCIR within ten (10) days of the entry of this Order, with the following information disclosed: names of complainants, accused parties, witnesses, and other 2543CE67-0B48-4C64-A78B-014C80712710 : 000015 of 000015 Entered involved individuals; job titles; workplace locations; and other identifying information (with the exception of personal home or cell phone numbers, personal email addresses, and home addresses, which may be redacted). Information protected under HIPAA and the attorney-client privilege shall remain redacted. This is not a final order, subject to compliance with the required production of documents and any motion for attorney’s fees filed within 10 days of the entry of this Order. SO ORDERED this 11th day of October, 2018. ______________________________ PHILLIP J. SHEPHERD, JUDGE Franklin Circuit Court, Division I Hon. Michael P. Abate Hon. Cassie Chambers 710 W. Main St., 4th Floor Louisville, KY 40202 Hon. Cary B. Bishop Finance and Administration Cabinet Office of General Counsel 702 Capital Avenue, Room 392 Frankfort, KY 40601 Page 15 of 15 Entered 18-CI-00335 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000015 of 000015 DISTRIBUTION: