Request By:
Mr. Arthur Hatterick, Jr.
Kentucky Personnel Board
Room 372, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
Kimberly K. Greene, an attorney for the Courier-Journal, has appealed your partial denial of the Courier-Journal reporter Deborah Yetter's open records request to have access to certain records concerning the personnel action brought by Rosby Glover appealing his dismissal by the Corrections Cabinet.
FINDINGS IN BRIEF
Under the facts presented, where female Corrections Cabinet employees testified in open Personnel Board hearings, these employees do not have a cognizable privacy interest. Consequently, the Personnel Board's refusal to permit a full inspection of the requested records was not justified by the personal privacy exemption of the Open Records Act - KRS 61.878(1)(a).
FACTUAL BACKGROUND
Ms. Deborah Yetter, a reporter with the Louisville Courier-Journal requested, by telephone, certain records maintained by the Personnel Board in the matter of Rosby Glover v. The Kentucky Corrections Cabinet . She was advised that the request needed to be submitted in writing. Thereafter, a representative of the Courier-Journal in writing requested of the Personnel Board:
All records related to the hearing and hearing officer's order on the dismissal of Rosby Glover, former employee of the Corrections Cabinet at the Kentucky Correctional Institute for Women at Pewee Valley.
In response to this request, the Personnel Board released to the Courier-Journal records consisting of 22 pages, including the findings of fact and recommended order in the Personnel Board matter styled, Rosby Glover v. Corrections Cabinet , consolidated Appeal Nos. 88-609 and 89-095. However, the Personnel Board redacted from the findings the identities of female corrections officers who had lodged sexual harassment complaints against Glover and later testified, citing the privacy exemption to the Open Records Act, KRS 61.878(1)(a).
The Courier-Journal and the Personnel Board are familiar with Glover's appeal of his dismissal from state employment to the Personnel Board, and it is not necessary to recite the facts of that appeal in this opinion. Suffice it to say, the Corrections Cabinet dismissed Glover after numerous female corrections employees made complaints that he had sexually harassed them. The complaints included serious charges of unwelcome sexual advances, requests for sexual favors, verbal and other physical conduct of a sexual nature, and threats of reprisals if his conduct was reported. Glover appealed his dismissal to the Personnel Board which affirmed the Corrections Cabinet's decision to dismiss him based on the hearing officer's factual findings and recommended order. Each of the sexual harassment victims testified before the hearing officer in open hearings. The hearing officer determined that the Corrections Cabinet had met its burden in proving that Rosby Glover sexually harassed and discriminated against female employees, and therefore his dismissal was justified. In his recommended order the hearing officer recounted in detail the testimony of the female corrections employees of specific incidents of sexual harassment and identified these female employees by name. 1 These names were redacted from the records turned over to the Courier-Journal. However, the reporter obtained a copy of this recommended order, which had not been redacted, from the Corrections Cabinet.
Ms. Greene contends that the Personnel Board's reliance on KRS 61.878(1)(a) is misplaced for several reasons: First, she contends that if the hearing before the Personnel Board hearing officer was open to the public, it is "inappropriate and inconsistent with the law for the Board now to refuse to disclose the names of the complainant where those names have already been disclosed at a meeting required to be open to the public. 2 Second, Ms. Greene states that, "the Courier-Journal has already learned the identities of the women from the Corrections Cabinet." The Courier-Journal obtained settlement documents from the Cabinet which identified by name the women who had complained of sexual harassment. She states, "clearly the individuals involved in the matter at issue have no privacy interests which warrant protection under KRS 61.878(1)(a), because their identities as complainants were placed in the public domain when the Corrections Cabinet complied with the Open Records request." Moreover, Ms. Greene contends the fact that another agency has provided her client the names of the women does not justify the Personnel Board's decision to withhold the names of the sexual harassment victims.
By way of a response for the Board, you point out that not all hearings are open to the public, and at the meeting where the Board reviewed the proposed order the identities of the victims were not disclosed. You concluded your letter by stating, "the testimony in this appeal was of such a nature that it would clearly be an unwarranted invasion of personal privacy under normal circumstances. Such testimony . . . is not the kind of information that a female would want known by her spouse, parents, children, or otherwise. The testimony . . . involve[d] matters concerning intimate details of a personal and private nature . . . [which] would be offensive to reasonable persons."
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing an inspection, are those records 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. " The Open Records Act does not define "personal privacy. "
In OAGs 86-76 and 91-35, we discussed the privacy exemption, in some depth. Quoting from 62 Am.Jur.2d, Privacy, at § 1, in OAG 86-76 we said:
'A judicially approved definition of the right of privacy is that, it is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. The right of privacy has also been defined as the right to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned . . . .'
Quoting from 77 C.J.S., Right of Privacy at § 2, we said:
'It has been stated broadly that the right of privacy is designed to protect those persons with whose affairs the community has no legitimate concern from being dragged into an undesirable and undeserved publicity, and to protect all persons from having matters which they may properly prefer to keep private made public against their will . . . .'
The Supreme Court of the United States, construing the similarly worded privacy exemption contained in the Federal Freedom of Information Act, said that the privacy interest intended to be protected concerned information "'intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.'"
United State Department of Justice v. Reporters Comm., for Freedom of the Press, 489 U.S. 749, 103 L. Ed. 2d 744, 109 S. Ct. 1468, 1476 (1989) (Quoting Webster's Third New International Dictionary at 1804 (1976)). ("Reporters Comm.") See OAG 91-35.
In the only reported Kentucky case construing the privacy exemption of the Kentucky Open Records Act,
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Comm., Ky.App., 625 S.W.2d 109 (1981), the court held that determining whether disclosure of information would involve an unwarranted invasion of privacy, involves a balancing of interests of the parties as well as those of the public measured by the standard of the reasonable man. Quoting from an earlier case,
Perry v. Moskins' Stores, Ky., 249 S.W.2d 812, 813 (1952), the court said the right of privacy:
[I]s based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the rule is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is judge is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in the litigation, as well as those of the public.
Id . at 110.
Essentially, the Kentucky Court of Appeals adopted the same balancing test that the federal courts have applied in construing the privacy exemptions contained in the Federal Freedom of Information Act ("FOIA"), except the balance is not "tilted toward disclosure." Id . at 111. Therefore, federal cases construing the privacy exemptions in FOIA cases are persuasive authority when construing the privacy exemption of the Kentucky Open Records Act.
Whenever the personal privacy exemption is raised by an agency to justify withholding public records, we apply a two-part test. The preliminary question which must be addressed is whether the interest in nondisclosure is is a type of privacy the exemption was intended to protect. See, Reporter's Committee, supra 109 S. Ct. at 1476. See also, OAG 91-35. If the preliminary question is answered in the affirmative, then the privacy interest of the individual must be balanced against the right of the public to be informed about the conduct and affairs of state government and its officers and employees.
Turning to the facts of the case presented, we are of the opinion that the female employees who testified in open Personnel Board hearings do not have a cognizable personal privacy interest in keeping their identities confidential.
We need not undergo the second part of the analysis, which requires a balancing of the interests of the parties, because such a balancing test is not required where no cognizable privacy interest is found to exist.
By this opinion, we do not depreciate the privacy concerns raised by the Personnel Board. As a society, we are sympathetic and protective of victims of rape, incest, and sexual harassment. For example, many newspapers have a policy not to print the names of victims of rape out of concern for the victim's privacy. In a given case, the privacy interest of the victims could outweigh the public's right to inspect government records.
However, when individuals voluntarily testify in an open hearing, whether in court, or before an administrative tribunal, they do not have a reasonable expectation of privacy concerning their testimony or their identities. By definition, open hearings are conducted in public and testimony from such hearings (or orders pertaining thereto) are also open to the public, unless excepted by some other recognized exemption in the Open Records Act.
It is therefore the opinion of the Attorney General that the Kentucky Personnel Board was not justified in redacting from the records tghe names of the employees who testified in open hearings before releasing the records to the Courier-Journal. However, was emphasize that the privacy exemption must be considered on a case-by-case basis. We do not suggest that, in future cases where sexual harassment victims testify in closed hearings, the balancing test would necessarily require disclosure of the victims; identities. We only hold that under these specific facts, i.e., where the victims testified in open hearings, that redacting the victims' names was not justified by the privacy exemption.
As required by statute, a copy of this opinion is being mailed to Kimberly K. Green, who requested it. You have the right to initiate further proceedings in the approprate circuit court pursuant to KRS 61.880(5) and KRS 61.881.
Footnotes
Footnotes
1 The hearing officer could have better protected the privacy of the female employees by using a pseudonym such as "Jane Doe" in referring to each witness in these findings.
2 We express no opinion as to whether or not the Personnel Board hearing officer could have legally closed the hearings to the public.