Request By:
Mr. Kenneth E. Brandenburgh
Commissioner
Kentucky State Police
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
By letter dated January 7, 1980, you, as Commissioner of the Bureau of State Police, denied the request of Mr. Ron Davis, a staff reporter for The Louisville Times, to inspect and copy all reports and documents resulting from official evaluation of Sgt. Eugene Coffey's performance as Kentucky State Police trooper and all reports and documents used in making such evaluations.
The Courier Journal and Louisville Times Company, through its attorney, Mr. Jon L. Fleischaker, has appealed to the Attorney General to review your denial of his request and issue a written opinion to your agency, stating whether your agency acted consistent with provisions of KRS 61.870 to 61.884. The matter having been duly considered, the Attorney General issues the following opinion as to whether the copying and inspection of the documents in question were properly denied within the purview of the Open Records Law. See KRS 61.880(2).
OPINION OF THE ATTORNEY GENERAL
The state request for inspection of records form containing the factual information about the request and denial indicates that you denied the request for two reasons: (1) The records requested contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. (2) The requested evaluations and supporting documents are matters of opinion and are not open to inspection under KRS 61.878. You cited OAG 77-394. The Courier Journal contends that neither of these reasons has any merit.
Specifically, the newspaper contends that the exception of KRS 61.878(1)(a) applies only to matters entirely unrelated to the performance of public employment, and they cite a statement to that effect in OAG 78-133, copy enclosed. We believe the Courier Journal misconstrued that statement in the whole context of the opinion. There the Courier Journal wanted documents pertaining to disciplinary action against a state policeman. We ruled in that opinion that such disciplinary records did not come within the exception of personal privacy, as contained in KRS 61.878(1)(a).
In OAG 77-394, copy enclosed, the inspection of the annual records of evaluation of a university professor was sought. In ruling against the request as involving the exception of KRS 61.878(1)(a), we pointed out that the public is entitled to know the name, position, work station and salary of a state employee. These [the items just mentioned] are matters in which the public has an interest, since state employees are carrying on the public's business at public expense. But beyond those areas of public scrutiny, the state employee is entitled to privacy as to his personal life, including his home address.
It is our opinion that the evaluation documents sought here contain material of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, as provided in the exception of KRS 61.878(1)(a). The mere evaluation of a state policeman's performance is a matter of opinion and, standing alone, does not constitute any action on the part of the Kentucky State Police. The use of the term "unwarranted" in KRS 61.878(1)(a) suggests that we must balance a public interest purpose for disclosure of personal information against the potential invasion of individual privacy. Wine v. Hobby, USA, Inc. v. United States Internal Rev. Serv. (U.S.C.A. -3, 1974) 502 F.2d 133. Here, under the facts given, we believe that the public's right to know is outweighed by the right of personal privacy. In addition, there are compelling considerations of public policy. Generally, officers would not wish to evaluate their subordinates for evaluation purposes if such records are to be bared to the public scrutiny. In some instances public knowledge could possibly result in libel, slander, or defamation suits. Where privacy in this area of governmental evaluation is understood to afford privacy then better and more objective evaluations are more likely to be given. In such latter case, efficiency in state government is promoted, the public gaining by that privacy in the end.
The right of privacy has been defined in 62 Am.Jur.2d, Privacy, § 1, as the "right to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned." See Perry v. Moskins Stores, Ky., 249 S.W.2d 812 (1952) 813, adopting the doctrine of privacy just cited.
Turning now to your second reason for denying inspection, you wrote that the requested evaluations documents are matters of opinion and thus come under the exception of KRS 61.878(1)(h). In view of our conclusion as to the first reason for denial, we do not find it necessary to deal with your second reason.
In summary, and for the reasons and authorities given, it is our opinion that, in denying the copying and inspection of the requested evaluation records, you acted consistent with the provisions of the open records law. Specifically, your denial of all such records was legally permissible under KRS 61.878(1)(a) [unwarranted invasion of personal privacy] . The provision of KRS 61.878(3), relating to the agency's separation of excepted and non-excepted documents and making available the non-excepted, has no application here.