Request By:
Mr. Jack C. Blanton
Vice President for Business Affairs
and Treasurer
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Dr. Duncan B. Gardiner has appealed to the Attorney General under KRS 61.880 your denial of his request to inspect and copy "that portion of the letter of the College (A & S) Committee on Promotion and Tenure for Area C relating to the promotion and tenure file of Duncan Gardiner". You denied the request by letter dated July 6, 1981 stating as follows:
"It is my understanding that the letter to which you refer is one containing the advice and recommendation of a committee and is forwarded to Dean Sands together with additional information in order for Dean Sands to render a determination. Characterized as aforesaid, I believe the letter in question is a preliminary recommendation expressing opinions and as such is exempt from disclosure pursuant to KRS 61.878(1)(h)."
OPINION OF THE ATTORNEY GENERAL
As the letter in question is described, we believe that you are correct in concluding that the letter is exempt from the mandatory requirement of public inspection by KRS 61.878(1)(h) which exempts records which are "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." Also we believe that the records can be withheld from Dr. Gardiner's inspection under KRS 61.878(1)(a):
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
In OAG 77-394 we held that a college professor was not entitled to see the annual evaluation of her work made by her superiors and her peers because the persons making such an evaluation are entitled to have their opinions and recommendations kept confidential. In OAG 77-394 we said as follows:
"The evaluation of a teacher's performance is a matter of opinion and does not constitute any action on the part of the university. We believe that the teacher is therefore entitled to have such information withheld from the public. The action which the university takes in the light of the evaluation is what the public is entitled to know. . . . Since the public is not entitled to inspect a teacher's evaluation, the teacher has no more right than the public to inspect the evaluation under the Open Records Law."
KRS 61.884 which provides that any person shall have access to any public record relating to him or in which he is mentioned by name is qualified by the clause "subject to the provisions of KRS 61.878." We interpret this qualifying clause to mean that a public agency is entitled to withhold from a person a record in which he is mentioned if the record comes under one of the exemptions from mandatory public disclosure in KRS 61.878. In this case the requested record is covered by at least two of the exemptions -- the privacy exemption and the preliminary memorandum exemption.
As directed by statute a copy of this opinion is being sent to the requester who has the right to challenge it in court.