Request By:
Mr. Carter Whitaker
Superintendent
Magoffin County Schools
Magoffin County Board of Education
Salyersville, Kentucky 41465
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of October 20, 1989, to this office, Bill Estep, a reporter for the Lexington Herald-Leader Company's South Central Kentucky Bureau, has, in substance, appealed your response to his request to inspect and copy various documents of the Magoffin County School District. Your response to Mr. Estep was dated October 12, 1989.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency " . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
The Magoffin County Board of Education acted consistent with Open Records provisions, and related interpretations then in effect, in partially denying a request to inspect certain personnel records of school employees or former employees. However, upon review, this office has determined that there may be no general denial of inspection of personnel records. In particular, inspection of employment applications and resumes, and records of educational qualifications - meaning educational levels obtained - insofar as reasonably related to qualification for public employment, must be permitted, where, under the facts of a given request to inspect, such review is warranted, so as not to constitute an unwarranted invasion of personal privacy. Information to be maintained as confidential may be masked or separated from information to be released. Employee "evaluations," involving as they do, opinions, are not subject to inspection.
FACTUAL BACKGROUND
By letter of about September 30, 1989, Bill Estep, a reporter for the Lexington-Herald Leader Company's South Central Kentucky Bureau, asked to inspect, or be provided, the following:
The names of all school-system employees in the 1986-87, 1987-88, 1988-89 and 1989-90 school years and their classification, assignment and place of assignment and whether they were or are full- or part-time.
The charges presented against former Magoffin County High School Principal Diral Adkins at his demotion hearing in 1989.
Minutes of board meetings from January 1, 1986 until the present, including special board meetings and demotion or other hearings before the board.
Personnel records on the following current or former school system employees, including but not limited to applications submitted in their names for employment; their date of employment; their salary; job titles and responsibilities of those still employed; and performance evaluations: Carter Whitaker; Diral Adkins; Faye Ealey; Rodney Whitaker; Winnie Gardner; Beverly Gamble; Tammy Vanhoose; Linda Tackett; A.B. Conley; Ronnie Gullett; Gerold Howard; Billy Joe Howard.
In a response Dated October 12, 1989 [Mr. Estep indicated during a telephone conversation on the evening of October 26, 1989, that the timeliness of your response is not questioned], you advised Mr. Estep, in summary, as follows.
You indicated "no document" (understood to mean no single document) would show the classification, place of assignment, and employment status, other than the Minutes of the Board. You indicated Mr. Estep could inspect these during normal business hours of the Board.
You indicated charges presented against Mr. Adkins are a part of the Minutes of the Board, and that Minutes of the Board from January 1, 1986 would be made available.
Regarding Mr. Estep's request to review personnel records of several present or former employees of the Magoffin County Schools (as set forth above), you stated:
As you must surely be aware, the consistent position of the Office of Attorney General has been that access may be denied to the resume of a school employee as well as to other parts of an employee's personnel folder. See OAG 88-13, 87-77, 87-37, 79-275, 77-394 and 76-717. See also KRS 61.878(1)(a). Consequently the only information that will be made available as to the individuals listed in your letter are the dates of employment, salary, job titles and responsibilities to the extent documents exist to reflect same. Again, the minutes of the Board of Education will reflect some of this information. Also, the contracts of employment for these individuals may provide some of the information desired.
Your letter indicated a copy of your response was being forwarded to this office. You invited Mr. Estep to contract you regarding access to documents within the scope of the [Open Records] Act.
Mr. Estep's letter to this office indicates his appeal is limited to inspection of employment application forms . He poses several specific questions in such regard. These are:
(1) Are applications for employment submitted to Kentucky public school districts open for inspection under the Open Records Act?
(2) If some information on such applications is a public record but some is not, how should the public information be released?
(3) If information on past work experience is listed on a standard application by a job applicant to a public school, is that job-history information a public record?
(4) Finally, are educational qualifications reported by an applicant to a public school on an application form of public record?
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, you responded in writing within a time indicated by the requester as appropriate, thus timeliness of response is not addressed here.
Your response, as noted above, indicated that no document other than the minutes of the Board of Education would show the classification, assignment, place of assignment and employment status of school system employees, and that the minutes would be made available for inspection. You also indicated that charges against Mr. Adkins were set forth in the minutes and could be reviewed in the course of reviewing the minutes.
Regarding Mr. Estep's request for "personnel records" on a number of named current or former school system employees, you indicated that only information regarding dates of employment, salary, job titles and responsibilities would be made available. You indicated this [the Attorney General's] office had consistently upheld denial of inspection of resumes as well as other parts of an employee's personnel folder. You cited sereral Attorney General Opinions, and KRS 61.878(1)(a), in such regard.
Basically, your response, when compared against Mr. Estep's requests, and his letter of appeal, appears only to deny general inspection of the contents of a personnel file, and specifically, inspection of employment applications and resumes.
In sum, you responded in writing to a request to inspect public records, and, in denying inspection of certain records, cited a specific statutory exception from among those in KRS 61.878 as a basis for such denial. You provided a brief explanation of the applicability of the statutory provision cited to records withheld. Additionally, you cited specific Opinions of this office which set forth our views. Accordingly, we believe you acted consistent with the provisions of KRS 61.870 to 61.884.
We have reviewed our prior opinions that you cited in denying inspection of certain records contained in personnel files. We believe a different view must be advanced regarding inspection of certain of the records involved.
Under Open Records provisions there may not be a general or blanket denial of inspection of records contained in the personnel file of a public employee, or of a resume or application for employment. To the extent our opinions 84-19 and 87-77 uphold a general denial of inspection of the resume of a public employee, and 79-275 upholds general denial of information on an employment application, we overrule them. Discussion follows.
As with all records of public agencies, under Open Records provisions, personnel records are subject to inspection, without a court order, unless an agency denies inspection in accordance with one of the particular exceptions set forth in KRS 61.878. Often portions of records that might be termed "personnel records" are denied pursuant to KRS 61.878(1)(a), which you cited in your response to Mr. Estep.
KRS 61.878(1)(a) permits an agency to exempt from inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(4) provides that:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
In
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109, (1981), the Kentucky Court of Appeals remanded an action for a determination regarding which records among those in personnel files were subject to inspection. In accordance with the test announced in that case, determination of whether disclosure of information from a public personnel record would involve an unwarranted invasion of personal privacy, requires balancing the right of an individual to privacy, as against the public's right to be informed, when judged by the standard of a reasonable man. The Court expressly refrained from adopting a standard, applied by some federal courts in cases involving inspection of personnel records under the federal Freedom of Information Act, which calls for that "balance" to be "tilted towards disclosure. " See for example,
Ditlow v. Schultz, 517 F.2d 166 (1975). The language of the U.S. Freedom of Information Act that excepts from disclosure certain information contained in personnel files, 5 U.S.C. 552(b)(6), is similar to the language of KRS 61.878(1)(a) (supra).
In
Klein Independent School District v. Mattox, 830 F.2d 576 (1987), cert. denied , 108 S. Ct. 1473 (1988), the United States Court of Appeals for the Fifth Circuit effectively upheld a Texas Attorney General's ruling under the Texas Open Records Act, that a schoolteacher's college transcript was subject to inspection.
The Texas Act (Texas Revised Civil Statutes Annotated, article 6252-17a Sec. 1) contains a provision similar to KRS 61.878(1)(a), but specific to personnel files. Tex. Rev. Civ. Stat. Ann. art. 6252-17a, Sec. 3(a)(2) exempts from public inspection "information in personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy [.]"
In Klein, supra, the court, having noted the Texas provision regarding unwarranted invasion of personal privacy (supra), stated (at 581):
We do not find that the disclosure of a schoolteacher's college transcript rises to the level of information which constitutes an unwarranted invasion of personal privacy, as provided in section 3(a)(2).
The Court went on to note that:
Recently, there has been grave concern in Texas about the quality of public education, notwithstanding the state's regulations. Many teachers who had been certified and were teaching in Texas classrooms could not pass a basic test of minimal competency. In light of this apparent lack of competency prevalent in the state, the public must have full and complete information concerning the teachers who serve the public in educating their children.
Certainly there are concerns in Kentucky regarding the quality of our schools. When the media attempts to carry out an evaluation in such regard, as appears to be here involved, we see no unwarranted invasion of personal privacy in examining relevant prior work experience and educational qualifications of employees or former employees. One does not typically work in secret, such that one's prior work experience would be reasonably termed information of a personal nature, release of which would constitute a clearly unwarranted invasion of personal privacy. We believe the same view applies to educational qualifications or levels attained by public employees. Compare, for example,
Core v. United States Postal Service, 730 F.2d 946 (1984).
Accordingly, we find that, regarding current or former employees (as distinguished from applicants not selected or hired) inspection of information regarding prior work experience reasonably related to qualifying for a public position, such as that of a teacher, as well as educational qualifications pertinent to public employment, - meaning educational levels achieved - does not involve the release of information of a personal nature such that public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, within the meaning of KRS 61.878(1)(a). This is particularly so where a request to inspect such records is made in connection with an evaluation of the overall quality of a public program (as might be distinguished from an isolated inquiry about one individual), where no purpose, and thus "warrant," can be discerned.
We do not believe, however, that under Kentucky law (KRS 61.878(1)(a), and, Board of Education, (supra), a schoolteacher's college transcript is subject to inspection, where a school board has denied inspection pursuant to KRS 61.878(1)(a). We do believe inspection of an employment application or resume must be permitted regarding work experience and educational levels attained (e.g, high school, college, advanced degree) that are reasonably related to qualifying for public employment.
Applications for employment and resumes submitted to Kentucky public school districts, by those who are hired , are subject to inspection regarding prior work experience that is reasonably related to qualifying to work in the public schools. Educational qualifications, meaning educational levels obtained (supra), reported upon such documents, are also subject to inspection. A Teaching Certificate (KRS 161.020) that may be contained in a personnel file is also subject to inspection. See OAG 85-109. Cf., Core, (supra), and see,
City of Dubuque v. Telegraph Herald, Inc., Iowa, 297 N.W.2d 523 (1980), and,
Hubert v. Harte-Hanks Texas Newspapers, Inc., Texas, 652 S.W.2d 546 (1983).
Information upon an application or resume that is of a personal nature within the meaning of KRS 61.878(1)(a) may be separated and withheld in accordance with KRS 61.878(4). Such information would include, but not be limited to, information such as an employee's home address, social security number, medical information, etc. See, for example, OAG 79-275; OAG 87-37. A typical approach is to "mask" or cover confidential information contained upon a record, make a copy of the "masked" instrument, and furnish such copy to the requester.
Inspection of employee evaluations, sought by Mr. Estep in his request, may be properly denied under the reasoning set forth in OAG 77-394.
You should promptly advise Mr. Estep that he may inspect records in accordance with this opinion.
Your agency, Bill Estep, or the Lexington Herald-Leader Company, may have a right pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Bill Estep.