Request By:
Mr. Charles D. Whitlock
Executive Assistant
Office of the President
107 Coates Building
Coates Box 35-A
Eastern Kentucky University
Richmond, Kentucky 40475-3101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Jennifer Feldman and Mr. H. Inness Probizanski have appealed to the Attorney General pursuant to KRS 61.880 your partial denial of their requests to inspect various records and documents.
In her letter to the University's Director of Personnel, dated November 6, 1988, Ms. Feldman requested that she be permitted to inspect records concerning Dr. Elizabeth Fraas. Ms. Feldman described various categories of records and documents with which she was concerned.
You replied to Ms. Feldman in a letter dated November 14, 1988 and advised her that while she would be given access to some of the material, the following records would not be made available: job application, resume, vita, commendations, request for tenure and grade disputes.
In his letter to you, which is undated, Mr. Probizanski requested that he be permitted to inspect records pertaining to Eastern Kentucky University's President Dr. Hanly Funderburk. Mr. Probizanski described various categories of records and documents with which he was concerned.
You replied to Mr. Probizanski in a letter dated November 17, 1988. While your letter indicated that some of the material he sought to inspect would be made available, it was not clear as to precisely what records and documents were withheld from his inspection. The undersigned Assistant Attorney General contacted you by telephone on Friday, January 27, 1989 concerning this matter. You advised that some of the requested material, such as Dr. Funderburk's tax records are not in the University's possession, and there are no records concerning a housing maintenance allowance since Dr. Funderburk is required to live in University housing. There are no requests for a contract extension, no reports of special projects and no disciplinary actions involving the President. Of the records and documents which do exist and which are in the University's possession, Mr. Probizanski was furnished all of the material requested pertaining to Dr. Funderburk except the job application and attached questionnaire he submitted to the University's Board of Trustees.
In their joint letter of appeal to this office Ms. Feldman and Mr. Probizanski maintain that they are entitled to inspect all of the records requested because those documents relate to the qualifications of public employees to hold their positions. Exceptions to public inspection such as the privacy exception are not applicable in their opinion.
OPINION OF THE ATTORNEY GENERAL
One of the groups of records and documents withheld consists of job applications and attached questionnaires, resumes and vitae.
Among the records which may be withheld from public inspection in the absence of a court order authorizing inspection are those set forth in KRS 61.878(1)(a) and (g):
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; "
In OAG 79-58, copy enclosed, at page two, we said that applications to take an examination to obtain a license are exempt from public inspection pursuant to KRS 61.878(1)(a) and (g). In OAG 87-77, copy enclosed, we concluded that resumes of governmental employees can be excluded from public inspection pursuant to KRS 61.878(1)(a) because they are personal records and contain a variety of personal information and data. There was nothing in the situation presented that demonstrated that the public's interest in gaining access to the resume is greater than the employee's right to his personal privacy. A vita would fall in the same category as a resume.
While there is no privacy statute in Kentucky the concept of privacy has been recognized for many years. The test to be applied involves the balancing of interests of the parties as well as those of the public measured by the standards of the reasonable man. See OAG 87-37, copy enclosed, and the cases and principles cited therein. It is reasonable to assume that applications, resumes and vitae contain information of a personal nature, similar to an employee's personnel file. In Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 635 S.W.2d 109, 111 (1981) the court held that "an unbridled search of the personnel files of parties who are strangers to the action [does not] serve a public interest which would be greater than the protection of those strangers' privacy. " The court went on to hold that KRS 61.878(3) authorizes the custodian of the records to sanitize them of material which was not germane to the action.
Similarly, here, we believe that the custodian of the documents requested could sanitize them of all information of a personal nature, utilizing the principles set out in OAG 87-37.
Another category of documents and records withheld consists of requests for tenure and commendations. Another exception to public inspection involves records described in KRS 61.878(1)(h) as, "Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
A request for tenure is obviously a preliminary document as it is a request for something to be done and not something which has been done. It does not represent a final action or decision by the University. While the University and all other public bodies have an obligation to release records pertaining to a final decision on a matter they are not required to release all the preliminary material leading up to the final decision. See City of Louisville v. Courier Journal, Etc., Ky. App., 637 S.W.2d 658 (1982).
None of the parties to this appeal has described what a commendation is. If it represents a final action by the University then such a document should be made available for inspection. If it is a preliminary action or part of an evaluative process or a recommendation made and passed along the chain of command, then it may be excluded from public inspection.
In OAG 88-38, copy enclosed, at page four, we said that the denial of a request to inspect documents consisting of notes, intraoffice memoranda and investigative reports setting forth opinions, observations and recommendations of governmental personnel, which do not represent the agency's final decision, was proper as such material may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
Furthermore, material pertaining to the evaluation of teachers may be withheld from public inspection pursuant to KRS 61.878(1)(a) to protect both the person being evaluated and the person making the evaluation. What is a matter of public record is the action which the University takes in light of the evaluation. See OAG 77-394 and OAG 79-348, copies of which are enclosed.
The final category of documents withheld involves matters pertaining to grade disputes.
Not only does KRS 164.283 make student academic records confidential in all public supported institutions of higher learning in Kentucky, but the so called "Buckley Amendment" cuts off Federal funds otherwise available to an educational institution which has a policy of permitting the release of information prohibited from release by that Federal enactment. The Buckley Amendment is discussed in OAG 87-67, a copy of which is enclosed. The University must adhere to the requirements of the Buckley Amendment to retain its eligibility for Federal funds and, therefore, cannot release education records (or personally identifiable information contained therein). KRS 61.878(1)(i) provides that a public agency shall withhold from public inspection in the absence of a court order to the contrary, "All public records or information the disclosure of which is prohibited by federal law or regulation."
As required by statute a copy of this opinion is being sent to the appealling parties, Ms. Jennifer Feldman and Mr. H. Inness Probizanski, who have the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.