Request By:
Mr. Daniel F. Egbers
Managing Attorney
Department of Personnel
Capitol Annex Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. M. Daniel Herndon, an attorney employed by the Natural Resources and Environmental Protection Cabinet, has appealed to the Attorney General's Office pursuant to KRS 61.880 your partial denial of his request to inspect a number of documents in the possession of the Department of Personnel. The requested documents which were not produced are identified as:
The official personnel file of Lisa Keener and Myron Daniel Herndon as maintained by the Department of Personnel.
All documents produced by the Natural Resources and Environmental Protection Cabinet and the Department of Personnel that relates [sic] to the evaluation of Lisa Keener for the position of Branch Manager filled on December 1, 1990.
All other requested materials were either produced, or a satisfactory explanation was offered for their nondisclosure.
With respect to Mr. Herndon's request for access to his personnel file, as well as that of Lisa Keener, you indicated that although he could inspect his own file, pursuant to KRS 18A.020, he would not be permitted to inspect Ms. Keener's. In your letter of partial denial, dated April 2, 1991, you stated:
Generic requests to inspect institutional files were held to be improper in OAG 85-88 which states that the request must specify the particular document or documents sought to be inspected. Since some documents in each personnel file come within the personal privacy exception in KRS 61.878(1)(a) your request is denied pending receipt of a more specific description.
You also denied his request for access to evaluations of Lisa Keener, relying on KRS 61.878(1)(a) and OAG 86-15.
In his letter of appeal, Mr. Herndon states that his request for Ms. Keener's file is "generic because there is no way to know what documents the Department of Personnel may have placed in the personnel file. " Continuing, he states:
The general denial without specifically identifying the documents excluded is improper and in violation of KRS 61.878. A blanket denial allows the agency to independently decide what is exempt and what is not without giving the requesting party an opportunity to challenge that independent decision. Under the Open Records provisions there may not be a general or blanket denial of inspection of records contained in a personnel file of a public employee or of a resume of [sic] application for employment. OAG 89-90.
Moreover, he objects to your denial of his request to inspect evaluations of Ms. Keener, arguing that if the Department "based its approval of [her] promotion on the evaluations," or if they "are to be used in a personnel hearing," their disclosure does not constitute an unwarranted invasion of her privacy. No authority is cited in support of this position.
Mr. Herndon asks that we review the partial denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied his request for access to Ms. Keener's personnel file and evaluations.
OPINION OF THE ATTORNEY GENERAL
This Office, and the courts of the Commonwealth, have consistently held that because much of the information contained in personnel files is personal in nature, and the disclosure of such information serves no public interest, individuals seeking to inspect personnel files under the Open Records Law must specifically identify the records sought. Board of Education fo Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981); OAG 85-88. In OAG 85-88, p. 2, we upheld the Kentucky State Penitentiary's denial of a request to inspect an entire inmate file, noting that "[a]n inmate's institutional file in all probability contains some information which may be inspected by the inmate or the public and some information which is exempt from public inspection. " Moreover, we observed:
In his request to inspect, [the requestor] never referred to any specific documents. He merely referred to his complete institutional central file. In OAG 76-375, . . ., we said in part that if a person cannot describe the records he seeks to inspect with specificity, there is no requirement that copies of the records be delivered to him. In addition, 'Blanket requests for information on a particular subject without specifying certain documents need not be honored.'
OAG 85-88, p. 2. Clearly, caselaw and prior OAGs require that the requesting party reasonably identify the records contained in a personnel file which he wishes to inspect to enable the custodian of the file to determine if the records are exempt under KRS 61.878(1)(a), the privacy exemption to the Open Records Law.
We do not believe OAG 89-90, cited by Mr. Herndon in support of his position, is controlling here. In that opinion, the Magoffin County Board of Education was served with a request for:
Personnel records on . . . current or former school system employees, including but not limited to applications submitted in their names for employment; their date of employment; their salary; job titles and responsibilities of thoss still employed; and performance evaluations . . . .
OAG 89-90, p. 2. In response, the Board issued a general denial. We held that such a denial was improper insofar as the request identified specific documents. The Board was therefore required to respond in kind, explaining its reasons for nondisclosure of each document requested. With reference to resumes and applications for employment, we overruled a number of prior opinions, and stated that these documents are subject to inspection. We did not require disclosure of employee evaluations or of personnel files generally.
Mr. Herndon requested access to the "official personnel file of Lisa Keener." Like the requestor in OAG 85-88, he did not refer to any specific document. We believe that opinion is dispositive of this appeal. Accordingly, we find that the Personnel Department properly denied this request.
Mr. Herndon also requested access to evaluations of Lisa Keener produced by the Department of Personnel. It is his position that disclosure of evaluations is not prohibited where they have been used in a personnel hearing or as the basis for a promotion. We are not persuaded by this argument.
The Attorney General has long recognized that inspection of employee evaluations may be denied under KRS 61.878(1)(a). OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 83-286; OAG 86-15; OAG 89-90. In OAG 77-394, we stated:
The evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency]. We believe that the [employee] is therefore entitled to have such information withheld from the public. The action which the [agency] takes in light of the evaluation is what the public is entitled to know.
OAG 77-394, p. 2. Moreover, we have acknowledged that the privacy interests protected are as much those of the evaluator as those of the person being evaluated inasmuch as the evaluator generally makes his evaluation with the understanding that it will be kept confidential. OAG 79-348; OAG 86-15.
Mr. Herndon's position would only be persuasive if the Department had relied on KRS 61.878(1)(h) in withholding Ms. Keener's evaluations, and the evaluations had in fact been adopted as the basis for the Department's final action. If a document is exempt under KRS 61.878(1)(a), it does not lose this status after the agency takes final action. Simply stated, this is not a relevant consideration. We therefore find that your denial of Mr. Herndon's request to inspect Ms. Keener's evaluations was proper.
You have indicated your willingness to reconsider Mr. Herndon's request for access to Ms. Keener's personnel file, if he will specifically identify the documents he wishes to inspect. We encourage you to continue to work in a spirit of cooperation toward providing those documents. To that end, we caution Mr. Herndon that he must describe, with reasonable particularity, the records he seeks.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Daniel Herndon. He may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).