Request By:
Mr. James A. Graves
Superintendent
Monroe County Board of Education
Magnolia Street
Tompkinsville, Kentucky 42167
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Flora Templeton Stuart, Esq., has appealed to the Attorney General pursuant to KRS 61.880, on behalf of her client, Patricia B. Miller, the denial of her request to inspect and make copies of certain public records in your custody. Ms. Stuart describes the documents in question as the records and evaluations of Ms. Miller during her employment as a teacher by the Monroe County Board of Education.
In a letter dated February 24, 1986, prepared by Robert L. Chenoweth, Esq., Counsel for the Monroe County Board of Education, Ms. Stuart was advised in part as follows:
" . . . As I informed you yesterday during our telephone conversation, Mr. Graves provided a copy of Ms. Miller's personnel file to her in August 1985. Although I have been informed that there exist no written evaluations of Ms. Miller in her personnel file, it is my belief Mr. Graves need not provide a copy of same even if they did exist pursuant to the exemption set out in Kentucky's Open Record's Act, KRS 61.878. See also OAG 77-394 . . . ."
In her letter of appeal to this office Ms. Stuart maintains that the Monroe County Board of Education has refused to provide her and her client with copies of the evaluations of Ms. Miller contained in the school system's files. Mr. Chenoweth, in a letter to Ms. Stuart dated March 5, 1986, a copy of which was sent to this office, again advised Ms. Stuart that her client had been furnished with a copy of her file in August of 1985. He further advised Ms. Stuart that there are no formal written evaluations of Ms. Miller in the files relative to her performance as a teacher in the Monroe County Schools.
Apparently it has been several years since Ms. Miller was last employed by the Monroe County Board of Education so the provisions of KRS 156.101, relative to teacher evaluations, are not applicable to her employment with the Monroe County Schools as those provisions were not to be applied until 1985.
OPINION OF THE ATTORNEY GENERAL
After examining the materials made available to this office it is readily apparent that the Monroe County Schools made available to Ms. Miller, by a letter dated August 26, 1985, ten specific items contained in her personnel file. This office had previously been furnished with a copy of your letter to Ms. Miller.
Even though you had furnished such materials to Ms. Miller, Ms. Stuart's letters to you dated January 9, 1986, and February 14, 1986, relative to the records of Ms. Miller, would have to be considered as requests to inspect and copy documents under the Open Records Law. Those letters should have been answered in writing within three working days of their receipt. See KRS 61.880(1).
Regardless of whether or not Ms. Miller's personnel file pertaining to her employment as a teacher with the Monroe County Board of Education contained evaluations relative to her teaching performance, you acted in conformity with the provisions of the Open Records Act (KRS 61.870 to KRS 61.884) in connection with the decision communicated to Ms. Stuart. If no such evaluations exist then, obviously, you cannot furnish or supply or provide access to that which you do not have and the request to inspect records is moot. If such evaluations do exist or did exist, your refusal to permit the inspection of these kinds of documents can be supported under the exceptions to public inspection.
Among those public records which are excluded from the application of the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction are those set forth in 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, a copy of which is enclosed, we concluded in part at page two 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. Such action is either the offering of a contract or the denial of a contract."
In OAG 79-348, copy enclosed, we also dealt with the evaluation of teachers and said in part that the privacy protected is that of the person making the evaluation. Frequently the person making the evaluation is identified and he makes the evaluation with the understanding that the evaluation will be kept confidential.
We dealt with the privacy exemption and the evaluation of a policeman's performance in OAG 80-58, copy enclosed. Such an evaluation is a matter of opinion and standing alone does not constitute any action on the part of the police department. The public's right to know is outweighed by the right of personal privacy.
Memoranda of an evaluative nature has been consistently exempted from public inspection as a protection against an unwarranted invasion of personal privacy. The privacy right protects both the subject of and the creator of the document of evaluation. See OAG 83-286, copy enclosed. Finally, in OAG 82-204, copy enclosed, we concluded, at page four, that it was proper to withhold inspection of the records because the University is entitled to protect the privacy of the faculty members who wrote the letters of evaluation and because the letters contain preliminary recommendations and constitute preliminary memoranda in which opinions are expressed.
It is therefore the opinion of the Attorney General that the school system acted in conformity with the Open Records Law because if the former teacher's personnel file contained no evaluations of her performance as a teacher, a request to inspect evaluations was moot, and if the personnel file did contain such evaluations the denial of the request to inspect those evaluations is supported by the exception to public inspection set forth in KRS 61.878(1)(a).
As required by statute, a copy of this opinion is being sent to the requesting party, Ms. Stuart, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).