Request By:
Robert J. Yarbrough, Esq.
Staff Attorney
Natural Resources and Environmental
Protection Cabinet
Office of General Counsel
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Paul F. Fauri, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in the custody of the Natural Resources and Environmental Protection Cabinet.
In a request dated July 5, 1988, and addressed to Mr. Jack O'Nan, Personnel Branch Manager, Mr. Fauri made a request to inspect the following documents:
"Complete personnel file of the following employees of the NREPC: Caroline Patrick Haight, Barry Burrus, Brad Lyon, J. Alex Barber. Please notify me to arrange a time to inspect the documents."
You replied to Mr. Fauri in a letter dated July 8, 1988, and advised him as follows:
"This is in response to your request to examine the personnel files of Caroline Patrick Haight, Barry Burrus, Brad Lyon and J. Alex Barber. You may examine all portions of those files which are not exempt from public disclosure under KRS 61.878(1)(a) as 'public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy' and which are not excluded by KRS 61.878(1)(g) and (h) as preliminary information. You should contact Mr. Jack O'Nan at 564-2042 to set up an appointment to examine the files."
In his letter of appeal to the Attorney General Mr. Fauri states in part that he reviewed xerox copies of the personnel files of the persons in question on July 19, 1988. He was advised that he would not be able to see the job evaluations or the applications for these persons.
Mr. Fauri maintains that the partial denial of his request does not conform with the requirements of KRS 61.880 and that the material withheld is subject to public inspection. Your letter to him contained a general statement that he could examine portions of the files which are not exempt from public disclosure but there was no identification in that letter as to what specific documents were being withheld and why.
OPINION OF THE ATTORNEY GENERAL
In regard to a public agency's obligation relative to a request to inspect and copy public documents, KRS 61.880(1) states in part as follows:
". . . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. . . ."
While you stated that the requesting party could examine all portions of the personnel files which are not exempt from public disclosure under KRS 61.878(1)(a), (g) and (h), you never identified what specific documents were withheld from inspection. There was no explanation as to how the exceptions relied upon applied to the specific documents withheld. There was merely a statement that some unidentified documents were being withheld from inspection pursuant to some of the statutorily recognized exceptions to public inspection.
In order for this office to determine whether you have acted properly and within the terms and provisions of the Open Records Act, we need to know what kinds of documents were withheld. The requesting party maintains that Mr. Jack O'Nan told him that evaluations and applications of the persons involved were withheld. This office needs to know what kinds of applications and evaluations were withheld and whether those documents constitute all of the documents and records withheld. Our concern is not with what you released or made available but with that which you withheld from inspection.
As far as the request to inspect documents is concerned, we think it could have been more specific which, of course, would have facilitated your response. A personnel folder of a public employee, by its very nature, contains a mixture of documents which are subject to inspection and which may be excluded from public inspection. Rather than a "shotgun" approach or engaging in a sort of fishing expedition, the request should have been more specific as to the kinds of records and documents which were the subject of the request to inspect. See, for example, OAG 85-88, copy enclosed, and the case of
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981).
In the above mentioned case the court said in part that much of the information found in the personnel folders deals with items and facts of a personal nature and no public interest would be served by a complete disclosure. At page 111 of its opinion the court said in part as follows:
"From what we have said, we do not mean to imply that our open records statute has no application but rather, since we must treat these actions on a case by case basis, we are reversing and remanding this cause so that appellee may specify what information (and only such information as pertains to sex discrimination relevant to promotional practices) it seeks. Thereafter, pursuant to KRS 61.878(3) the appellant is authorized to 'sanitize' the records of material which is not germane to the action and in the event a dispute arises as to what is or is not pertinent to the litigation, then the circuit court, upon application of either or both of the parties, shall make the appropriate determination in accordance with KRS 61.882(3) . . . ."
Therefore, in conclusion, it is the opinion of the Attorney General that the response of the public agency to the request to inspect documents was insufficient as it did not conform to the requirements of KRS 61.880(1) and it did not identify those specific documents withheld from inspection. In addition, the request to inspect documents in personnel files was insufficient as it was overly broad and made no attempt to identify what particular documents the requesting party sought to inspect.
It is recommended that the requesting party resubmit his request and include therein a statement as to the documents or types of documents he seeks to inspect in the personnel files of the governmental employees involved. The public agency should then respond to the request pursuant to the terms and provisions of KRS 61.880(1).
As required by statute, a copy of this opinion is being sent to the appealing party, Paul F. Fauri, Esq. Since the findings and conclusions reached in this opinion may be adverse to the positions advanced by both parties on some points, either or both of the parties may challenge the opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.