Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Western Kentucky University's denial of College Heights Herald reporter, Chris Poynter's, August 19, 1992, request to inspect certain documents in the University's custody. Those records are identified as "teacher evaluations of the past five years for instructors in the physics and astronomy department." In a letter dated August 24, 1992, Ms. Deborah Tomes Wilkins, University Counsel, denied Mr. Poynter's request. Relying on KRS 61.878(1)(a) and OAG 86-15, Ms. Wilkins maintained that teacher evaluations are exempt from disclosure. She therefore declined to release the evaluations.
On behalf of his client, the College Heights Herald, Mr. Scott A. Bachert appealed to the Attorney General, pursuant to KRS 61.880(5), Western's denial of Mr. Poynter's request. Bachert attempted to distinguish Mr. Poynter's request for evaluations from earlier Attorney General opinions dealing with public employee evaluations arguing:
We feel that prior opinions regarding teacher evaluations are not applicable to the case at hand since the evaluations in question are, in fact completed by the students. This is merely an evaluation which enables the instructor to gain a better understanding of the strengths and weaknesses of the instructor as well as his/her effectiveness as an instructor as perceived by the student body.
It is his position that the students are therefore entitled to review these evaluations.
Responding to Mr. Bachert's arguments in a letter dated September 9, 1992, Ms. Wilkins cited a series of prior Attorney General opinions in which this Office held that evaluations of public employees, including teachers, are exempt from public inspection pursuant to KRS 61.878(1)(h) and (i), formerly (g) and (h), and KRS 61.878(1)(a). In the cited opinions, this Office recognized that an evaluation of a teacher's performance is a matter of opinion and does not constitute any action on the part of a public agency. Ms. Wilkins argues that the College Heights Herald "has failed to point out any compelling public interest in releasing these performance evaluations," and urges the Attorney General to reaffirm these prior opinions.
The issue presented in this appeal is whether anonymous evaluations of professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a). Based on the opinions cited by Ms. Wilkins, we conclude that the University properly denied Mr. Poynter's request. In OAG 79-348, at p. 2, we questioned the fairness and value of anonymous evaluations of a teacher by a student, and concluded that we "[did] not want to compound the unfairness by saying that the evaluation should be made public." On a similar note, in OAG 80-614, at p. 1, we stated that "[a]n evaluation of a college teacher's performance and professional proficiency is not a popularity contest by secret ballot."
In 92-ORD-1145, a copy of which is attached, we held that the evaluation of a school superintendent must be released, since the public's interest in reviewing those portions of it which have a direct bearing on the management of the school system, and the progress of the school system generally, is superior to the reduced expectation of privacy in that document which the superintendent might have. However, we expressly declined to extend the reasoning of that decision to other public employees, noting that "[w]e continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation." It is the opinion of this Office that an evaluation of a university professor is exempt from public inspection pursuant to KRS 61.878(1)(a), (h), and (i), regardless of who prepares it. Therefore, we uphold Western Kentucky University's denial of Mr. Poynter's request to inspect teacher evaluations of the past five years for instructors in the physics and astronomy department.
Mr. Bachert and the College Heights Herald may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.