Request By:
Ms. Lauren E. Melton
Public Information Officer
Jefferson County Public Schools
P.O. Box 34020
Loisville, Kentucky 40232-4020
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Mr. Dennis Franklin Janes, on behalf of Mr. Leslie M. Goff, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Janes' request to copy all applications for the position of Director -- Facility Construction received on or after April 17, 1989, by the Jefferson County Public Schools.
Dennis Franklin Janes requested copies of these applications by letter dated December 21, 1989, and received by the Jefferson County Public Schools on December 26, 1989. You acknowledged receipt of this Open Records Request by letter dated December 28, 1989, and further stated that the custodian of the requested records would be unavailable until January 2, 1990, and that a response would be subsequently furnished. In your letter of denial dated January 8, 1990, you stated as follows:
To the extent that your public records request seeks access to copies of all applications for the position of Director -- Facility Construction received on or after April 17, 1989, such documents are private rather than public records, as defined by KRS 61.878(1)(a) and KRS 61.878(1)(g). These documents are exempted from release to you since they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Please refer to OAG 76-717 noting that this material also represents correspondence with private individuals. Thus, your request must be denied to that extent.
Mr. Janes filed an appeal of this denial by letter dated January 12, 1990, and received in this Office on January 16, 1990. Mr. Janes contends, based upon the authority of OAG 89-90, that the Jefferson County Board of Education has incorrectly relied upon KRS 61.878(1)(a) and (g) as a basis for denying this open records request and quotes portions of OAG 89-90 which ostensibly support his position. Mr. Janes argues that all or part of the records sought for inspection are not exempt under the Open Records Law.
The undersigned Assistant Attorney General talked with you concerning this appeal by telephone on several occasions. You also sent a letter dated October 22, 1990, to the undersigned Assistant Attorney General in which you state in part as follows:
There were 22 applicants for the originally advertised position of Director of Facility Construction. The position was not filled and Mr. Jim Burch was not an applicant for the position.
A different position was created and filled from within the District through a lateral transfer. This position was not advertised and was filled by Mr. Burch, who transferred from the principalship of Southern High School. Therefore, there was no application for the position.
The undersigned Assistant Attorney General also talked with Mr. Janes by telephone and he continues to maintain that these applications are not exempt from inspection.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that the documents for which you have denied inspection are exempt from public inspection and copying pursuant to KRS 61.878(1)(a) and (g).
The issue raised in this open records appeal was indirectly addressed in OAG 89-90 wherein it was held as follows:
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).
OAG 89-90, p. 8. [Copy of opinion enclosed. ]
Contrary to the argument of Mr. Janes, this Office never held in OAG 89-90 that applications or resumes of unsuccessful applicants (applicants not selected or hired) were subject to inspection under the Open Records Law. This Office now expressly opines that applications and resumes from unsuccessful applicants for state jobs are exempt from inspection or copying under the Open Records Law pursuant to KRS 61.878(1)(a) which provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
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(1)(a).
The United States Court of Appeals for the Fourth Circuit encountered a similar issue, involving a denial of a request under the Freedom of Information Act. In upholding the agency's denial of a request for information concerning the employment experience of unsuccessful applicants for certain federal jobs, the Court balanced the privacy interests of the unsuccessful applicants against the public interest in disclosure and concluded that "disclosure of information about unsuccessful applicants . . . would be a clearly unwarranted invasion of their personal privacy. " Core v. United States Postal Service, 730 F.2d 946, 949 (4th Cir. 1984).
Core dealt with a different statute and is not controlling. However, this Office finds the reasoning contained therein persuasive and factually and legally analagous to the instant situation. Therefore, this Office adopts the sound reasoning of Core and holds that applications of unsuccessful applicants are exempt from inspection pursuant to KRS 61.878(1)(a).
In the instant situation, 22 applications were received by the Jefferson County Public Schools on or after April 17, 1989, for the position of Director of Facility Construction reporting to the Superintendent. None of these applicants were hired because it was decided not to fill the position. A different position was created with the same job title, reporting to the assistant superintendent of capital improvement. This new position was not advertised and was filled by Jim Burch through a lateral transfer. Mr. Burch did not submit an application for either the original position of Director of Facility Construction reporting to the Superintendent or the new position of Director of Facility Construction reporting to the Assistant Superintendent of Capital Improvement. Therefore, there were no applications of successful applicants for either job which would be subject to inspection and copying under the Open Records Law. OAG 89-90.
This Office also opines that the applications of the unsuccessful applicants are exempt from inspection under the Open Records Law pursuant to KRS 61.878(1)(g) which provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
Preliminary drafts, notes, correspondence with private individuals , other than correspondence which is intended to give notice of final action of a public agency.
KRS 61.878(1)(g). [Emphasis added.]
This Office dealt with a similar issue involving a request to inspect applications of persons seeking to take an examination given by the Kentucky State Board of Hairdressers and Cosmetologists for an instructor's license. This Office opined as follows:
It is the opinion of the Attorney General that the applications to take the examination for an instructor's license are exempt from public inspection under KRS 61.878(1)(g) which exempts correspondence with private individuals.
OAG 79-58. [Copy of opinion enclosed. ] The opinion herein is consistent with OAG 79-58.
To the extent that Mr. Janes may wish to inspect or copy specific documents within the personnel file of Jim Burch regarding his qualifications for the position of Director of Facility Construction reporting to the Assistant Superintendent of Capital Improvement, then such documents may not be exempt under the Open Records Law. See OAG 89-90. However, Mr. Janes did not expressly seek a copy of such documents in his December 21, 1989, open records request. Therefore, this Office respectfully declines to address this issue at this time.
Dennis Franklin Janes may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection are maintained pursuant to KRS 61.880(5).