Request By:
Hon. Quinten B. Marquette
Bell, Orr, Ayers & Moore
1010 College Street
P.O. Box 738
Bowling Green, Kentucky 42102-0738
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested an opinion from this Office on an issue arising under KRS 61.870 et seq., the Kentucky Open Records Act. Specifically, you ask whether members of the board of education may review the personnel records, including performance evaluations, of certified and classified employees. You note that with the passage of the Kentucky Education Reform Act, the board of education was divested of its responsibilities relative to personnel actions, and that responsibility reposed on the superintendent. You cite KRS 160.390(1), which provides, in part:
[The superintendent] shall be responsible for all personnel actions including hiring, assignments, transfers, dismissal, suspension, reinstatement, promotion, and demotion and reporting the actions to the local board.
For the reasons set forth below, we conclude that the members of the board of education enjoy the same, but no greater, right of access to the personnel files of certified and classified employees of the school system, as the public generally.
Kentucky's courts, and this Office, have recognized that personnel files contain some information which is subject to inspection and some information which is exempt from inspection.
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981); OAG 85-88; OAG 91-62. Many of the records in a personnel file contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. KRS 61.878(1)(a). Therefore, as a general rule the requesting party must reasonably identify the records in a personnel file which he wishes to inspect to enable the custodian of the file to determine if the records are exempt under the privacy, or any other, exception.
While the Open Records Act mandates, at KRS 61.878(5), that the exceptions to public inspection should not prohibit or limit the exchange of public records or the sharing of information between public agencies, this exchange is conditioned upon the agency with which information is shared serving a legitimate governmental need or performing a legitimate government function. Since the board of education no longer plays any role in personnel actions, it does not enjoy any greater right of access to the files by virtue of this provision. The board's right to inspect school system is therefore the same as the right of inspection enjoyed by any citizen under the Open Records Act. A member of the board must submit a written request to the custodian of the files in which he specifically describes the records he wishes to inspect. The custodian may deny the board member's request if the record he asks to inspect falls within the parameters of one or more of the exceptions codified at KRS 61.878(1)(a) - (k).
The General Assembly has demonstrated a commitment to insuring that no board member will attempt to influence the hiring of any school employee, except the superintendent and school board attorney, at KRS 160.170 and KRS 160.180. Moreover, KRS 160.370 and KRS 160.390, which relate to the superintendent's duties, clearly establish that it is he alone who is responsible for personnel actions in the district. Although we cannot foresee every eventuality, we believe that there may be instances when the Board might be called upon to discharge a legitimate government function necessitating review of otherwise exempt documents. In such instances, KRS 61.878(5) might be invoked. However, as a rule of general application, we believe that any review of personnel files by board members beyond that permitted the general public might give the appearance of impropriety. We therefore conclude that the board members may only inspect the nonexempt records contained in the personnel files of certified and classified employees.