Request By:
Mr. Paul H. Jones
Superintendent
Murray Public Schools
Poplar at Ninth Street
Murray, Kentucky 42071-2479
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mrs. Gwenna Maysey has appealed to the Attorney General pursuant to KRS 61.880 your denial of her August 30, 1991, request to inspect a number of documents in the possession of the Murray Public Schools. Specifically, Ms. Maysey requested access to "the employment applications and records of educational qualifications" of a number of school system employees. In addition, she expressed an interest in reviewing the attendance records of some of these employees.
You denied Mrs. Maysey's request in a letter dated September 9, 1991. Although you explained that release of the requested records "may invade the privacy of these individuals," you did not cite a specific statutory exemption authorizing nondisclosure, as required by KRS 61.880(1). Nor did you forward a copy of your letter of denial to this office, as required by KRS 61.880(2).
Mrs. Maysey asks that we review your denial of her request to determine if the Murray Public Schools acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you improperly denied Mrs. Maysey's request.
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 record 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Mrs. Maysey's request was deficient in at least two respects. You did not cite a specific exception authorizing the withholding of the records, or provide this office with a copy of your letter of denial. It appears, however, that you did respond in writing to Mrs. Maysey's request within three working days. A handwritten notation in the upper right-hand corner of her request indicates that it was hand delivered on September 4, 1991. Your response is dated September 9, 1991. Excluding Saturday and Sunday of the intervening weekend, the denial was issued within three days. Nevertheless, we urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that you improperly denied Mrs. Maysey's request. Assuming for purposes of this appeal, that you intended to rely on KRS 61.878(1) (a), which exempts from public inspection, "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " we are not persuaded that the requested documents fall within the parameters of that exception.
This office has consistently held that although a public employee is entitled to privacy in his or her personal life and off duty activities, OAG 76-717; OAG 87-37; OAG 87-84; OAG 91-48, release of documents containing information which relates to prior work experience and educational qualifications does not constitute an invasion of privacy. OAG 89-90; OAG 91-48. At page eight of OAG 89-90, we observed:
[I]nspection of information regarding prior work experience reasonably related to qualifying for a teacher 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 the employment applications, and other records of educational qualifications requested by Mrs. Maysey, are subject to inspection. Information of a personal nature contained in these documents, such as home address, phone number, social security number and marital status, should be separated and redacted in accordance with KRS 61.878(4). All other information requested by Mrs. Maysey, and pertaining to the identified employees' qualifications and ability to discharge their public duties must be released.
With respect to Mrs. Maysey's request for access to "attendance records," we conclude that the school system erroneously withheld these documents. We have previously recognized that teachers, as public employees, are only entitled to compensation for services rendered. Attendance sheets verify that such employees were present and on the job during any particular time period, and are not protected by the privacy exemption. OAG 84-161; OAG 86-55. At page two of OAG 84-161, we reasoned:
KRS 61.878(1) (a) protects an individual against an unwarranted invasion of personal privacy. This protection does not logically extend to time spent in public service which is compensated by public funds, and for which the public employee is accountable. In OAG 78-133 we held that KRS 61.878(1) (a) applies only to matters unrelated to the performance of public employment. The time a public employee spends in performance of public service which is compensated by public funds is directly related to public employment performance. As such, no personal privacy is involved and no protection against an unwarranted invasion thereof is required.
Accordingly, it is the opinion of the Attorney General that the attendance sheets must be released forthwith.
As required by statute, a copy of this opinion will be sent to the requesting party, Mrs. Gwenna Maysey. The Murray Public Schools may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).