Request By:
Commissioner Addie D. Stokley
Department of Personnel
Capitol Annex Building
Frankfort, KY 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas C. Jacobs, Deputy Attorney General
On behalf of the Personnel Board you have requested an Opinion of the Attorney General as to whether or not the Department of Personnel should comply with a request from the Kentucky Commission on Human Rights to furnish the Commission with the merit system examination scores of certain individuals certified on a specific merit system register. You stated that the request was made during the course of an investigation relating to a complaint of discrimination against a state agency filed with the Commission on Human Rights. It is our understanding that the complaint was one of sex discrimination. Your concern is with the Kentucky Open Records Act (KRS 61.870 et seq.) and Personnel Rule 101 KAR 1:140 § 12, which we presume was promulgated pursuant to KRS 61.876.
KRS 61.870 and KRS 61.872 would mandate that the subject material be disclosed unless same can be found to be exempt from the right of inspection pursuant to KRS 61.878. The last mentioned states in relevant part:
"The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. . . ." (Emphasis Added)
It is the opinion of this office that test scores of individuals applying for jobs within the classified service are matters of a personal nature within the contemplation of KRS 61.878(a) and are, therefore, exempt from the application of the State Public Records Act. This conclusion does not, however, fully answer the question presented, for any answer would be incomplete without an examination of the authority under which the Commission on Human Rights has made the request.
Under KRS 344.190(9), the Commission has the authority "At any time after a complaint is filed, to require answers to interrogatories, compel the attendance of witnesses, examine witnesses under oath or affirmation in person or by deposition, and require the production of documents relevant to the complaint. . . ." (Emphasis Added)
The powers of the Commission on Human Rights are further set forth in KRS 344.250, which reads in part as follows:
"(1) In connection with an investigation of a complaint filed under this chapter, the commission or its designated representative at any reasonable time may request access to premises, records, and documents relevant to the complaint and the right to examine and photograph and copy evidence." (Emphasis Added)
Considering all of the above it would, therefore, be our opinion that the requested information would be subject to release by your agency only in accordance with KRS 61.878, which requires an order of a court of competent jurisdiction, and only upon a showing by the commission that the information requested was, in fact, "relevant to the complaint". While this question is ultimately left to a decision by a court upon an action instituted by the Commission, this office would be of the initial opinion that test scores would not be relevant to a complaint based on sex discrimination in light of the personnel law and rules as we understand them.
The personnel law requires only that persons selected for a given job be among the top five qualifiers on the state "register" . The law does not require that the person with the highest score be the person selected for the job. So long as both the person selected for the job and the person instituting the complaint with the Commission on Human Rights were in the top five on the register, the respective test scores of those individuals would be immaterial in any complaint based on sex discrimination.
In summary, the information requested by the Kentucky Commission on Human Rights is exempt from disclosure pursuant to KRS 61.878(a) unless upon an order of a court of competent jurisdiction. A review of the authority of the state Human Rights Commission indicates that the burden rests upon that agency to substantiate its request for information by showing that the information requested is relevant to the complaint under consideration. Whether or not the burden is met is clearly the province of the Court.