Request By:
Mr. Roger Cole
Commissioner
Department of Administrative Services
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. William S. Dean has appealed to this Office pursuant to KRS 61.880 your denial of his July 18, 1991, request to inspect certain records he believes to be in the possession of the Transportation Cabinet. In his somewhat lengthy "shopping list," Mr. Dean requests access to:
1. All memorandums, letters, reports, books, papers, cards, notes, tapes, discs, diskettes, computer records, computer files, computer printouts, summaries, files, and any other documentation relating to and/or concerning the following:
a. The reasons, purposes, and/or effects of changing the grades and/or titles of persons employed as attorneys by the Transportation Cabinet which changes were approved by Betty C. Hawkins, Executive Director of the Cabinet's Office of Personnel Management, and Thomas C. Greenwell, Commissioner of Personnel, on March 7, 1991.
b. Attached please find a copy of a memorandum dated March 30, 1990, from Frederic J. Cowan, Attorney General, to Staff Attorneys concerning Salary Improvement. Referring to the said memorandum, I request to inspect all of the information identified and/or specified at the top of the page relating to and/or concerning the reasons, purposes, and/or effects of raising the salaries of the attorneys in the Office of the Attorney General and the Department of Public Advocacy to the mid-points of their salary ranges and/or not raising the salaries of the attorneys employed by the Transportation Cabinet to the mid-point of their salary ranges.
c. Whether the attorneys employed by the Cabinet for Economic Development, Education and Humanities Cabinet, Finance and Administration Cabinet, Department of Personnel, Personnel Board, Human Resources Cabinet, Judicial Branch, Justice Cabinet, Labor Cabinet, Natural Resources and Environmental Protection Cabinet, Public Protection and Regulation Cabinet, and Revenue Cabinet received pay raises when their grades and/or titles were changed between July 1, 1990, and the present time.
d. If any of the attorneys referred to in paragraph c did receive pay raises when their grades and/or titles were changed, the amounts of the pay raises, the grades and titles of the attorneys who received the raises, their ages, their experience as attorneys, and the length of time they have been employed by the Commonwealth of Kentucky.
e. Whether any attorneys employed by the Transportation Cabinet received pay raises when their grades and/or titles were changed between July 1, 1990, and the present time.
f. If any of the attorneys referred to in paragraph e did receive pay raises when their grades and/or titles were changed, the amounts of the pay raises, the grades and the titles of the attorneys who received the raises, their ages, their experience as attorneys, and the length of time they have been employed by the Commonwealth of Kentucky.
g. The reasons, purposes, and or effects of raising the pay of the persons employed by the Transportation Cabinet as Transportation Engineer I's, Transportation Engineer II's, and Transportation Engineer Branch Managers as of June 15 and/or not raising the pay of the persons employed by the Transportation Cabinet as attorneys in the same manner.
h. The reasons, purposes, and/or effects of changing the grades of the persons employed by the Transportation Cabinet as Attorney Chiefs and who work in the Department of Highways, District Office from Grade 16 to Grade 17 while not changing the grades of Transportation Engineer Branch Managers from their present Grade 16 to Grade 17.
i. The reasons, purposes, and/or effects of changing the minimum requirements of the position identified as Law Group, Code No. 9823, Attorney Chief, a Grade 16 position, from requiring four years of experience in the practice of law to requiring just two years of experience in the practice of law when the position was reidentified as Law Group, Code No. 9823, Attorney III, a Grade 17 position.
You responded to Mr. Dean's request in a letter dated July 29, 1991, advising him, generally, that the documents identified in Items b, c, d, h, and i were not in the possession of the Cabinet. You directed him to the Department of Personnel, noting that that agency is responsible for establishing classifications, assigning pay grades to those classifications, and determining the minimum requirements to qualify for those classifications. In response to Item a, you provided him with a copy of the classification and compensation change notice that the Cabinet received on February 15, 1991. In response to Items e and f, you provided Mr. Dean with copies of the approved P-1s on those individuals in the Department of Transportation who received increases to bring them to the minimum of the new pay grade. However, you refused to release their resumes, social security numbers, veteran's military records, transcripts, test scores for employment in the classified service, home addresses, and telephone numbers, relying on KRS 61.878(1)(a) and a number of cited opinions issued by this Office. Finally, you provided a written response to the question raised in Item g.
Although Mr. Dean does not indicate with which response(s) he takes issue, it appears that the only disputed documents are those identified in your response to Item f of his request. Accordingly, we will limit our review to the propriety of that response.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Your response to Mr. Dean's request was technically deficient because you did not notify him within three days whether you would comply with this request. Some seven workdays elapsed between the date of the request and the date of your response. Allowing for delays in the mail, the response was nevertheless untimely. We urge you to review these provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that although you were correct in denying Mr. Dean access to the social security numbers, military records, transcripts, test scores, home addresses, and telephone numbers of these individuals under a line of prior Attorney General opinions, you improperly withheld their resumes and employment applications.
Among the public records which may be withheld from inspection are those described in 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. " This Office has consistently stated that the public is entitled to know the name, position, work station and salary of a public employee. OAG 76-717; OAG 87-37; OAG 87-84. We have just as consistently stated, however, that a public employee is entitled to privacy in his personal life and off-duty activities. OAG 76-717; OAG 87-37; OAG 87-84. This right to privacy extends to the public employee's home address, social security number, and marital status. OAG 79-275.
Until recently, this right was extended to the resumes of public employees. OAG 84-19; OAG 87-77; OAG 87-84. In the cited opinions, this Office concluded that resumes are personnel records and, as such, contain personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. However, we have recently modified this view. In OAG 89-90 (copy enclosed), we held that evaluation of a public employee's relevant prior work experience and educational qualifications does not constitute an invasion of privacy. At page eight of that opinion, we stated:
[I]nspection 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).
Under this line of reasoning, resumes and employment applications are subject to inspection. See also, OAG 91-48.
We have discussed at some length, in our recent opinions, the need for a case by case analysis of the privacy interest in nondisclosure, and have rejected a per se approach to the issues raised in these appeals. OAG 91-35. Applying the Kentucky Court of Appeals balancing test, as announced in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), we conclude that Mr. Dean's interest in inspecting the resumes of individuals who have been raised to a new pay grade outweigh those individuals' right of privacy in such matters since "one does not typically work [or attend school] in secret." OAG 89-90, at p.8. Information of a personal nature contained in the resume or employment application, such as home address, phone number, social security number, and marital status should, however, be separated and withheld in accordance with KRS 61.878(4).
We conclude that the Cabinet erred in refusing to permit inspection of the resumes and employment applications of those individuals identified in Item f of the Mr. Dean's request, but correctly denied access to all other documents containing information of a personal nature. The Cabinet should review the resumes and employment applications prior to release so that information of a personal nature can be redacted.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. William Dean. Both Mr. Dean and the Cabinet may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).