18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION I CIVIL ACTION NO. 18-CI-422 COMMONWEALTH OF KENTUCKY, KENTUCKY LABOR 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 August 15, 2018 to argue the matter. Michael G. Swansburg, Jr. and 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000001 of 000008 Entered Megan Kingsolving appeared on behalf of the Kentucky Labor Cabinet (“Cabinet”), and Michael Abate 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 1, 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 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000001 of 000008 complaints of sexual misconduct in the workplace. Specifically, KCIR requested: 18-CI-00422 • 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 Pl.’s Mem. Ex. A. In response, the Cabinet initially provided a single set of records on November 21, 2017. Those documents stemmed from a 2015 complaint in which a female employee alleged that her male in-the-field training officer made an inappropriate sexual comment during training. After an investigation, the claim was substantiated. Certain portions of those records were redacted under the personal privacy exemption of KRS 61.878(1)(a), including the names, titles, signatures, phone numbers, and personnel information of the complainant, accused, and their supervisors. Other 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000002 of 000008 Entered portions, including draft versions of inspection reports and handwritten notes, were redacted under the preliminary documents exemption of KRS 61.878(1)(i). The Cabinet produced a second set of documents on December 5, 2017. This second file arose from allegations made in 2016 by a female employee. Specifically, she alleged that a male coworker made inappropriate sexual comments, showed her pictures of women in various stages of undress, exposed his genitals, and forced her to place her hands on his genitals. After an investigation, the claims were found to be unsubstantiated, based primarily on the complainant’s delay in reporting the incidents and the lack of eyewitness corroboration. These records also contained similar redactions under the Act’s personal privacy exemption, as well as three (3) pages that were withheld as privileged. With that appeal pending, representatives from the Cabinet and KCIR attempted to resolve the matter. In response, the Cabinet provided copies of previously withheld documents in the 2015 matter, including handwritten and typed investigation notes and draft notes of inspection reports. This time, the Page 2 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000002 of 000008 KCIR thereafter appealed the Cabinet’s response. 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk Cabinet did not redact the name of the accused in the 2015 incident. However, the following information remained redacted from the 2015 records: the name and cell phone number of the complainant and the personnel number of the accused. In addition, the Cabinet continued to withhold the following from the 2016 records: the name, title, and employer of the complainant and the name, personnel number, Social Security number, email address, job identification number, position identification number, and address of the accused. The appeal moved forward, and the Office of the Attorney General (“OAG”) conducted an in camera review of the unredacted documents. It issued its opinion in 18-ORD-059 on March 21, 2018. In that opinion, the OAG ultimately opined that the Open Records Act required the Cabinet 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000003 of 000008 Entered to disclose the name of the accused in the 2016 incident. In doing so, the OAG considered the privacy interests of the absolved employee but found that these concerns were outweighed by the public’s interest in monitoring the agency’s handling of these complaints. The OAG also found that the Cabinet properly withheld the identity of the 2016 complainant, as well as the other identifying information (i.e., personnel number, Social Security number, job identification number, home address, email address, etc.). However, at oral argument on August 15, 2018, the parties conceded that personal identifying information was properly withheld under the personal privacy exemption of KRS 61.878(1)(a).1 Furthermore, KCIR clarified that it did not appeal that portion of the OAG’s decision related to the identity of the complainant. Thus, the only issue before this Court is whether the state agency must reveal the 1 The Court agrees that the privacy interests of a complaining party may justify redaction under KRS 61.878(1)(a) so as to protect against a “chilling effect” when making reports of misconduct, but such determinations must be made on a case-by-case basis. See Finance and Administration Cabinet v. Public Radio, Franklin Circuit Court, Div. I, Civil Action No. 18-CI-335 (Opinion & Order entered October 11, 2018). Page 3 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000003 of 000008 identity of the accused in the 2016 matter involving an unsubstantiated complaint. 18-CI-00422 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). 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000004 of 000008 Entered ANALYSIS As our Supreme Court has explained, Kentucky’s Open Records Act “seeks to ensure the free and open examination of public 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 steadfastly to pursue the public good.” Id. However, not all records must be disclosed under the Act. KRS 61.878 enumerates various exemptions, thereby protecting certain types of documents from public inspection in the absence Page 4 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000004 of 000008 servants are indeed serving the public, and the policy of disclosure provides impetus for an agency 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk of an appropriate court order. When considering the applicability of these exemptions, the Court is mindful that the Kentucky Open Records Act “exhibits a general bias favoring disclosure.” Kentucky Bd. of Exam’rs., 826 S.W.2d at 327. Its exemptions must therefore 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 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000005 of 000008 Entered 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 is “of a personal nature.” Zink v. Comm., Dept. of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 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. For example, in Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky. App. 2009), a reporter sought a closed police case file involving an alleged, but apparently unprosecuted, rape. In that case, the public had a legitimate interest in Id. at 586. However, the Court of Appeals found that disclosing the identity of the suspect, a public figure, would likely cause scorn, ridicule, and harassment for the suspect. Id. at 585. Thus, the Page 5 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000005 of 000008 monitoring police conduct and ensuring that investigations were handled fairly and without bias. 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk personal privacy interest outweighed the public interest in that case, and the exemption was properly applied. In the current case, the information at issue also consists of the identity of an individual accused of sexual misconduct. Like the Lexington H-L Court, this Court acknowledges that this is information “of a personal nature” to the extent that it reflects on the moral judgment and conduct of the accused. Here, however, the application of those personal characteristics in the public workplace is at issue. Moreover, in this case, the accused has been exonerated after an investigation by the Cabinet. Thus, any concerns that the accused might suffer scorn, ridicule, and harassment are greatly diminished. In fact, as the Attorney General noted in 18-ORD-059, a falsely 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000006 of 000008 Entered accused public employee will find vindication in the disclosure of the very records that reveal the fruitless investigation and lack of disciplinary action. Against this minimal 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 doing.” Zink v. Dep’t of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). For example, through disclosure of complaints and investigation materials, the public can discern whether state agencies—funded by taxpayer dollars—are efficiently and effectively investigating and addressing employee misconduct. This provides insight into the behavior of government employees, as well as the efficiency and productivity of our state workplaces. Perhaps more Furthermore, this Court finds 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 Page 6 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000006 of 000008 importantly, it ensures that investigations are handled competently and without favoritism. 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk public has a right to know if discipline has been properly administered. If the allegations are unsubstantiated like the complaint at issue here, 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 favoritism. Moreover, this Court takes notice that such claims, even if unsubstantiated, may nevertheless result in costly litigation that imposes significant costs upon 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. As a result, the public interest involved in ensuring the timely, efficient, and competent resolution of these matters is significant. 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000007 of 000008 Entered The Court therefore finds that under the unique facts of this case, the public interest outweighs the minimal privacy interests of the exonerated individual. Accordingly, this Court finds that the Cabinet improperly withheld the identity of that individual under the Act’s personal privacy exemption. 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-059 and ORDERS that the identity of the accused be released to Defendant within ten (10) days of the entry of this Order. This is not a final order, subject to compliance with the required production of documents and any motion for SO ORDERED this 11th day of October, 2018. ______________________________ PHILLIP J. SHEPHERD, JUDGE Franklin Circuit Court, Division I Page 7 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk OPOR : 000007 of 000008 attorney’s fees filed within 10 days of the entry of this Order. 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk 1A69735E-6160-4AEC-AF3F-5A7C0F3A9711 : 000008 of 000008 Entered DISTRIBUTION: Hon. Jon L. Fleischaker Hon. Michael P. Abate Hon. Andrea Aikin 710 W. Main St., 4th Floor Louisville, KY 40202 OPOR : 000008 of 000008 Hon. Megan Kingsolving Hon. Michael G. Swansburg, JR. Office of General Counsel Kentucky Labor Cabinet 1047 U.S. Highway 127 South, Suite 4 Frankfort, KY 40601 Page 8 of 8 Entered 18-CI-00422 10/12/2018 Amy Feldman, Franklin Circuit Clerk