Request By:
Mr. William J. Morison, Director
University Archives and Records Center
Ekstrom Library
University of Louisville
Louisville, Kentucky 40292
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
On behalf of her client, the Courier Journal and Louisville Times Company, Ms. Kimberly K. Greene has appealed to the Attorney General pursuant to KRS 61.880 your denial of business writer, Ben Hershberg's, June 27, 1991, request to inspect the "report prepared by the chairman and vice chairman of the University of Louisville Board of Trustees representing the Board's annual evaluation of University President Donald Swain," along with supporting documents, including faculty and senate surveys.
You denied Mr. Hershberg's request in a letter dated July 1, 1991. Advising him that no such report exists, you explained:
I understand that, with the exception of a statement given by the Chair for its minutes, the Board of Trustees did not create a written record of its evaluation of President Swain.
In addition, you denied Mr. Hershberg's request for access to any supporting documents, relying on KRS 61.878(1)(h). You characterized those documents as "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " Further, you argued that the documents were exempt under KRS 61.878(1)(a), because "the evaluators worked under an expectation of confidentiality."
Ms. Greene indicates that in subsequent conversations with Chairman of the Board of Trustees, Mr. Woodford Porter, Mr. Hershberg learned that Mr. Porter, and Vice Chairman, Robert Benson, "authored a report concerning Swain's evaluation" which was later used in a meeting with the President. Acting on this information, Mr. Hershberg submitted a second request for access to the report and supporting documents on August 12, 1991.
You responded to this request on August 19, 1991, again advising Mr. Hershberg that no written report was made relative to Dr. Swain's evaluation. You acknowledged that Mr. Porter "made . . . some personal notes," which in your view, were exempt under KRS 61.878(1)(a) and (h), but explained that the Board minutes contained the record of the final action with respect to the evaluation of President Swain.
In her letter of appeal to this Office, Ms. Greene argues that the University's position is incorrect. Based on the information relayed to Mr. Hershberg by Chairman Porter, it is her position that a final report exists, and that, as such, it cannot be characterized as preliminary. Moreover, she asserts that any supporting documents, such as the faculty and staff senate surveys, that are incorporated into the report, are no longer preliminary and must be released.
Finally, Ms. Greene expresses the belief that KRS 61.878(1)(a) is inapplicable to the report. It is her position that although this Office has recognized that performance evaluations of rank and file employees of a university are not subject to public inspection, "this case presents an entirely different situation." In her view, an evaluation of the performance of Dr. Swain, as University president, is an evaluation of the performance of the University. In support of this position, she cites an informal opinion of this Office in which we opined that, under KRS 61.810(6) of the Open Meetings Act, a school board could not conduct a closed session to discuss the annual performance review of its superintendent. There, we concluded that a school board could not, at the outset of its review proceedings, invoke KRS 61.810(6) "to remove from the public domain its entire review of the school superintendent's performance relative to the school system generally."
Ms. Greene asks that we review the University's denial of her client's request to determine if this decision was consistent with the Open Records Act. For the reasons set forth below, we conclude that the University properly denied Mr. Hershberg's request.
OPINION OF THE ATTORNEY GENERAL
In a conversation with the undersigned on September 11, 1991, University of Louisville counsel, Tom Lyons, explained the procedures governing the Trustee's annual presidential evaluation, as well as the five year presidential review, and subsequently provided this Office with a copy of those written procedures. Mr. Lyons indicated that the Board conducts its yearly review to provide "feed back" to the president. The evaluation is a factor in the Board's ultimate recommendation on contract renewal and salary augmentation.
In April of each year, the Chairman of the Board of Trustees distributes copies of a self-assessment, prepared by the president, to members of the Board. The Board is free to gather other information for its use in formulating an evaluation. Upon review of these materials, the Board meets, in executive session, to discuss the president's performance. At the close of that session, the Chairman summarizes the Trustees' evaluation and, accompanied by the Vice Chairman, meets with the president for purposes of conducting an "overall review" of his performance. The rules governing the annual evaluation do not provide for a final written report.
Mr. Lyons further explained that at its regular meeting on June 24, 1991, the Board of Trustees of the University of Louisville discussed the annual evaluation of the President. The Board conducted these discussions in closed session. Upon reconvening in open session the Chairman, Mr. Porter, issued his report on the evaluation of the president, which was summarized in the minutes of the meeting as follows:
REPORT OF THE CHAIRMAN
Evaluation of the President
Chairman Porter reported that both the annual and five-year evaluations of the President were positive and commended President Swain for his leadership on behalf of the University for 1990-91 as well as the five-year period 1986-91. Chairman Porter also expressed the gratitude of the Board in the support provided by Mrs. Swain.
A motion was made by Mr. Gardner, seconded by Mr. Fischer, and unanimously passed, that the Trustees give the authority to the Chairman and the Vice Chairman to take the evaluation that's been made of the President and turn that into dollars compensation, and at the same time that his contract be renewed for a rolling five years which would be through July, 1996.
In delivering his remarks, Chairman Porter used a three page typewritten document, for reference, with which we have been provided a copy. The document contains a summary of the results of the evaluation. The comments do not appear on University letterhead, nor do they bear the signature of the Chairman, Vice Chairman, or President. Mr. Lyons explained that this document was prepared as an aid to Chairman Porter in presenting his summary to the full board and was not intended to be a "final report. " This was confirmed by the Chairman in a conversation with the undersigned which took place on September 11, 1991. It is this document which appears to be in dispute.
This Office has recognized that a performance evaluation "is a maker of opinion and does not constitute any action on the part of the University." OAG 77-394, at p.2. Continuing, we have observed:
The action which the University takes in the light of the evaluation is what the public is entitled to know. Such action is either the offering of a contract or the denial of a contract.
OAG 77-394, at p.2; See also, OAG 78-738; OAG 79-348; OAG 80-614; OAG 82-204; OAG 82-211; OAG 89-90; OAG 91-128. Thus, we have consistently held that a university may properly withhold performance evaluations under authority of KRS 61.878(1)(h), which authorizes nondisclosure of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " In spite of Ms. Green's assertion that this appeal presents "an entirely different situation," we can see no reason to depart from that view.
Having reviewed the document which gives rise to this appeal, we must first remark that it does not appear to represent a "final report. " As indicated, it was not prepared on official letterhead, nor does it bear the signature of the chairman or any member of the Board. It describes the steps in the evaluation process and the criteria used in the evaluation. In addition, it contains a list of the President's accomplishments in the previous year, and describes, in laudatory terms, his overall performance. According to Chairman Porter, he used the document in his meeting with Vice Chairman Benson and President Swain, and later in his report before the Board at its June 24 meeting. We therefore conclude that although a writing was generated in the course of the annual review, that writing did not represent a "final report. "
Moreover, even if the document is characterized as a final report on the President's evaluation, we are not persuaded that it falls outside KRS 61.878(1)(h), and the opinions cited above. As we have stated, an evaluation report is a matter of opinion and does not constitute any action of an agency. The action which the public is entitled to know is the action taken in light of the evaluation, here the renewal of President Swain's contract and the Board's recommendation that his salary be increased. As the minutes reflect, this action was announced at the Board's meeting. Thus, assuming for the sake of argument that the disputed document is "final," in that it represents a summary of the Board's opinions, it nevertheless falls squarely within the parameters of KRS 61.878(1)(h).
It is also our view that the document is exempt from public inspection under the provisions of KRS 61.878(1)(a), providing for nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
As we have noted on numerous occasions in the past, it is not only the individual who is being evaluated whose privacy interests are implicated. It is also the interests of those individuals who have expressed their opinion in making an evaluation. Such individuals will frankly assess the performance of the person being evaluated only if their opinions and recommendations remain confidential. OAG 77-394; OAG 80-614; OAG 82-204; OAG 82-211. This is particularly true when the individual who is being evaluated occupies a position of authority. Whatever reduced expectation of privacy a university president must accept, it is clear that the privacy interests of those who are asked to evaluate him or her should not be eroded.
We do not believe that the earlier informal opinion of this Office, cited by Ms. Greene, is inconsistent with this view. There, we specifically held that a school board could not conduct a closed session to discuss its "entire review of the school superintendent's performance relative to the school system generally, " [emphasis added], under KRS 61.810(6) of the Open Meetings Act. To the extent that a performance review generally relates to an agency, it is a matter of public concern. An evaluation of an individual's job performance should not, however, be subject to public scrutiny.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Kimberly K. Greene. Ms. Greene has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).