Request By:
Mr. Franklin H. Weir
Director
Division of Personnel
Lexington Fayette Urban County Government
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
Major Howard V. Langston and Captain John McFadden have appealed to the Attorney General, as allowed by KRS 61.880, the denial of inspection of certain records pertaining to the promotional process for the position of Assistant Chief of Police. The records were generated by the Assessment Center conducted in September, 1978. The records denied are described as
"8) Documents pertaining to the total score and ranking of this individual by the oral interview board.
9) Documents pertaining to the calculation of the numerical ranking by the oral interview board."
You denied inspection of the above described documents and gave as the reasons for so denying that the public disclosure thereof would constitute a clearly unwarranted invasion of privacy (KRS 61.878(1)(a)) and that the documents were preliminary memoranda in which opinions are expressed and recommendations are made (KRS 61.878(1)(h).
The requesters agree with you that the documents should not be open to public inspection, but urge that disclosure to the individual involved does not constitute a public disclosure. They contend that, therefore, they should be allowed to inspect even though they would not be subject to inspection by the public.
KRS 61.884 reads as follows:
"Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878."
Under this statute a person is entitled to inspect a document in which he is mentioned unless it is exempt under the provisions of the Open Records Law. If the disclosure of the document would constitute a clearly unwarranted invasion of personal privacy of any person, for instance the person who created the document, it is exempt under KRS 61.878(1)(a). If a document is composed of preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, it is exempt under KRS 61.878(1)(h). We believe that both of these exemptions apply in this case.
In OAG 77-394 we opined that a college professor was not entitled to see that annual evaluation of her work made by her superiors and her peers. The persons making such an evaluation are entitled to have their opinions and recommendations kept confidential. We think that the same applies to the members of the Assessment Center. We also think that the documents produced by the members of the Assessment Center in rating candidates and in voting are of a preliminary nature and therefore exempt from public inspection.
We have also been asked to give an opinion as to whether the disposal of the records in question would a violation of the Open Records Law. KRS 61.991(2) reads as follows:
"(a) Any official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 - 81.884 shall be guilty of a Class A misdemeanor for each separate violation.
"(b) Any official of a public agency who fails to produce any record after entry of final judgment directing that such record shall be produced shall be guilty of contempt."
Since we believe that work papers and preliminary memoranda are not public records subject to inspection, but are exempt, it follows that there is no prohibition against destroying such papers. As we pointed in OAG 78-262, not all papers which are generated by an agency in carrying out its work are public records. Before a misdemeanor is committed there must be an intent to subvert and violate the Open Records Law.
As directed by statute, we are sending a copy of this opinion to the requesters.