Request By:
Mr. H. Jack Webb, Superintendent
Greenup County Schools
Ohio River Road
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General as to whether you, as superintendent of the Greenup County Schools, have the authority to release to the Equal Employment Opportunity Commission in Memphis, Tennessee the personnel files of ten teachers employed by the Greenup County Board of Education. The pertinent question under the Kentucky Open Records Law, KRS 61.870 to 61.884, is whether the requirement of mandatory public disclosure applies to the requested records or whether, on the other hand, the records may be withheld from inspection under one of the exemptions to mandatory disclosure provided by KRS 61.878(1). We believe that the exemption which applies to the requested records is KRS 61.878(1)(a) which exempts: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Personnel records fall under this exception to mandatory disclosure. OAG 76-717.
The exemptions in the Open Records Law provided in KRS 61.878(1) are permissive, not mandatory. And since Kentucky has no privacy law, a records' custodian has the authority to release exempted records unless there is some statute which makes the records confidential. There is no such statute pertaining to personnel records and, therefore, you have the authority to make the requested records available to the public unless the school district has a policy of keeping the records confidential. In such case, every person requesting to inspect the records should be treated alike.
In the case
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), the Kentucky Court of Appeals held that certain information in a person's personnel file should be kept confidential because a person has a fundamental right to privacy, "to be left alone."
The Lexington-Fayette Urban County Human Rights case held that the Human Rights Commission did not have the right to inspect personnel files of persons not involved directly in the discrimination complaint. Therefore, under the Kentucky Open Records Law and under Kentucky case law you have the legal right to refuse to send the personnel files of other teachers to the EEOC on the grounds that to do so would violate their personal privacy.