Request By:
Mr. Edward J. Henry
Department of Personnel
Cabinet for Finance and Administration
New Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
W. Patrick Stallard, attorney for Dalene McCann, has appealed to the Office of the Attorney General pursuant to KRS 61.880 your denial of McCann's request to inspect the Work Plan Performance Review and Observation Log pertinent to her employment record.
Your memorandum to McCann which denied inspection exempted the requested material under specification number one on the reverse side of Form B-010-1, which is the general form used for requesting inspection of public records. Specification number one exempts inspection of public records that contain personal information.
The Work Plan Performance Review and Observation Log is a public record. KRS 61.876(3) provided for the Department of Finance to promulgate rules and regulations concerning access to public records for all state administrative agencies. 200 KAR 1:020 Sec. 1(2) defines "public records" as records prepared by a state administrative agency. The Cabinet for Finance is such an agency as defined by 200 KAR 1:020 Sec. 1(1).
Your denial, based on the personal information content of the records requested, is premised on 200 KAR 1:020 Sec. 4(1) which provides for exemption from public inspection (except by an order of the court) those "public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy. "
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law.
This office has consistently held that evaluative memoranda is not open to public inspection under KRS 61.878(1)(a), which is essentially similar to the 200 KAR 1:020 Sec. 4(1) exemption. These decisions were based on the premise that although the person requesting access was the subject of the requested memoranda, he has no greater right to inspection than the general public. Therefore, since the memoranda was exempted from public inspection, it was also exempted from inspection by the requester.
OAG 82-204 and OAG 77-394 both denied inspection based on the privacy exemption in situations similar to the instant appeal. In both opinions, a college professor had requested inspection of evaluative memorandum in his personnel file. In OAG 82-204, the evaluative memorandum consisted of letters from other faculty members. In OAG 77-394, the memorandum was annual evaluations for a three year period. OAG 82-204 cited OAG 77-394 in stating:
Since the public is not entitled to inspect a teacher's evaluation (due to the privacy exemption) , the teacher has no more right than the public to inspect the evaluation under Open Records law.
The same result occurred concerning records pertaining to a promotion for the position of assistant chief of police in OAG 79-128.
Similarly, in the instant appeal, the requested records are not open to public inspection due to the privacy exemption. As a member of the public, McCann is also exempted from inspection.
McCann indicates in her appeal that if she is exempted by this privacy exception, she waives her privacy right in order to allow inspection. However, the privacy right extends also to the persons involved in creating the document, and this right cannot by waived by McCann. See OAG 79-128.
Inspection is also exempted in this appeal by 200 KAR 1:020 Sec. 4(8) which disallows inspection (except by court order) of "preliminary recommendations and memoranda in which opinions are expressed or policies formulated or recommended." It is apparent that the requested document is preliminary and contains opinions.
It is therefore the opinion of this office that your denial was proper under the Open Records law. The requested document is exempted from public inspection as a protection against an unwarranted invasion of privacy to both the author and subject of the document. It is also exempt as a preliminary memoranda containing opinions. 200 KAR 1:020 Sec. 4(1) and (8).