Request By:
Mr. Roy C. Brien, Chairman
North Marshall Water District Commissioners
Route 7, Box 184
Benton, Kentucky 42025
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Bessie Elliot has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect certain records in your custody as Chairman of the North Marshall Water District. Specifically, Ms. Elliot requested access to the resume, letters of reference and qualifications of Mr. Larry C. Brannon, General Manager of the North Marshall Water District.
Ms. Elliot submitted her request on February 6, 1991. You denied inspection in a letter dated February 19, 1991, stating, "The District personnel files of all employees are confidential and not public records. " You did not cite a specific exception authorizing the withholding of the records, nor did you offer a brief explanation of how the exception applied to the records withheld. KRS 61.880(1). Ms. Elliot has asked this office to review the denial.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue raised in this appeal, we direct your attention to KRS 61.880(1) which requires that an agency response denying, in whole or in part, inspection of any record must be sent to the requester within three days (excluding Saturdays, Sundays and legal holidays) of receipt of the request and must cite the statutorily authorized exception upon which the agency relied. The North Marshall Water District violated the Open Records Act by its insufficient response to the requester's original letter, and by its failure to respond in a timely fashion. In the future, any denial issued by the North Marshall Water District should conform to the requirements of KRS 61.880(1), and should contain an explanation indicating how the statutory exception applies to the specific situation. OAG 86-86; OAG 87-60; OAG 87-83.
Turning to the issue raised by your denial of Ms. Elliott's request, it is our opinion that the Water District is a public agency, created under authority of Chapter 74, and is therefore subject to the Open Records Act. [Cf. OAG 78-395 (Water association created under authority of KRS Chapter 273 not a public agency) .] Accordingly, its records are open for inspection by any person, unless those records are exempt under one of the statutorily authorized exceptions. KRS 61.872(1).
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 are subject to inspection.
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 (Copy enclosed) . 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 the public's interest in inspecting Mr. Brannon's resume, to assess his qualifications to serve as Chairman of the District, outweighs his right of privacy about such matters since "one does not typically work [or attend school] in secret." OAG 89-90. Information of a personal nature contained in the resume, such as home address, phone number, social security number and marital status should be separated and withheld in accordance with KRS 61.878(4). All other information requested by Ms. Elliott that relates to Mr. Brannon's ability to discharge his official responsibilities must be released.
Inspection of letters of reference written on behalf of Mr. Brannon may be denied under the exception that has been carved out of the Open Records Act for "correspondence with private individuals." KRS 61.878(1)(g); OAG 83-79; OAG 89-86 (Copies enclosed) . Such letters are not correspondence between two public officials on official business within the contemplation of the Act, and are therefore exempt.
We conclude that the Water District erred in refusing to permit inspection of Mr. Brannon's resume, but correctly denied access to his letters of recommendation. The District should review the resume prior to inspection so that information of a personal nature can be redacted.
We strongly urge the District to respond to future Open Record requests as directed in KRS 61.880(1). The District should issue its responses in three days, and if it denies a request, indicate the statutory exception upon which it relies and provide a brief explanation of how it applies to the records withheld.
As required by statute, a copy of this opinion is being sent to the requesting party, Ms. Bessie Elliott. The District, or Ms. Elliott, may institute proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).