Not every public record is an open record. The law recognizes 14 exceptions to the general rule that “free and open examination of public records is in the public interest.” But a record that does not fall under one or more of these statutory exceptions must be disclosed to the public, and no restrictions can be placed on inspection or use of that record.
In January 2017 the attorney general ignored this fundamental principle of the open records law by issuing an open records decision in which he affirmed the Cabinet for Health and Family Services’ attempt to restrict the use of open records disclosed to a requester.
That requester, a cabinet employee, asked for copies of written statements that resulted in her reprimand. The cabinet disclosed the statements to the employee but – expressing concerns about use of the records to retaliate “against anyone for performing their job duties” — advised her that she “should not discuss it [sic] with anybody, in any form or fashion, outside of [her] supervisors.”
Essentially, the cabinet told the requester that these open records could not be made public.
There is, by the way, no question that the requested records were open records. The written statements were adopted as the basis for the cabinet’s decision to reprimand the employee and therefore forfeited any protected status under the exceptions for preliminary documents that they may have once had.
The requester challenged the cabinet’s attempt to restrict her use of the records in an appeal to the Office of the Attorney General. She maintained that the cabinet’s actions subverted the intent of the open records law short of denying her access, a statutorily recognized basis for filing an appeal.
In the resulting decision, 17-ORD-007, the attorney general established a dangerous precedent by concluding that the Cabinet’s actions did not subvert the intent of the open records law. The attorney general reasoned – poorly, in our view – that the cabinet did not prohibit the requester’s right of access but instead “issued workplace restriction on [the requester’s] conduct.”
This strained interpretation of the law directly contradicts past decisions issued by the Office of the Attorney General.
In OAG 93-19, for example, the attorney general advised legislators to whom public records had been disclosed by the Lottery Corporation – accompanied by strict admonitions on subsequent disclosure of the records – that the Lottery Corporation could not “prevent release of the information once it [was in the legislators’] hands.”
Two years later, the attorney general determined that nothing in the open records law “permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others.” The “only restriction on secondary use of” public records the attorney general recognized in 95-ORD-77 related to commercial use of records as delineated in KRS 61.874(5). The attorney general reaffirmed this position in 04-ORD-113 and again in 14-ORD-170.
Lawmakers amended the open records law in 2016 to include a specific prohibition on commercial use of mugshots and booking photos, but these well-established principles otherwise remain firmly intact.
It is difficult to conceive of a clearer, and more improper, restriction on secondary use of public records than the restriction issued by the Cabinet for Health and Family Services to the employee whose appeal resulted in the attorney general’s erroneous decision in 17-ORD-007.
It is even more difficult to conceive a of clearer, and more improper, assault on the public’s right to know than an attorney general’s open records decision that endorses agency action aimed at censoring the recipient’s use of public records.
Fortunately, the requester has appealed 17-ORD-007 to the appropriate circuit court and a hearing is scheduled in July. Given the great importance of the issue it presents to the court, we will follow this case very closely.