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 the actions of Dr. Leon Mooneyhan, superintendent of the Shelby County Public Schools, in responding to Mr. Dennis F. Janes' May 6, 1993, request to inspect "all SC 101 Forms, including cover sheets, pertaining to Norma J. Roberts' performance in the 1992-1993 school year." Ms. Roberts is the principal of Wright Elementary School. Mr. Janes is an attorney representing Ms. Roberts, and his request was made under the Open Records Act.
Dr. Mooneyhan partially denied Mr. Janes' request in a letter dated May 11, 1993, advising him:
Copies are available of my summative evaluation of Ms. Roberts, including my summary of the SC 101 forms submitted by Ms. Roberts' teachers in order to assist in my evaluation, and the SC 101 forms themselves. The cover sheets, however, contain only individual teachers' names and, pursuant to the evaluation plan, have been previously removed and discarded.
In any event, the release of the sheets, identifying solely the individual teachers making the assessments reflected by their SC 101's, which are themselves preliminary in nature, would be exempted as a matter of personal privacy pursuant to KRS 61.878(1)(a).
In his letter of appeal to this Office, Mr. Janes argues that as a "public agency employee," Ms. Roberts is entitled to the records that she seeks. He relies on KRS 61.878(3), which provides that none of the exemptions codified at KRS 61.878(1)(a) through (k) "shall be construed to deny, abridge, or impede the right of a public agency employee . . . to copy any record including preliminary and other supporting documentation that relates to him." It is Mr. Janes' position that "KRS 61.878(3) specifically allows Ms. Roberts to review documents pertaining to her 'job performance' and 'evaluations.'"
The single issue presented in this open records appeal is whether Dr. Mooneyhan properly relied on KRS 61.878(1)(a) in denying Mr. Janes' request for the SC 101 Form cover sheets. For the reasons set forth below, and upon the authorities cited, we conclude that the Shelby County Public Schools violated the Open Records Law in partially denying the request.
In 93-ORD-19, this Office addressed a similar issue and concluded that KRS 61.878(3) overrides any of the exceptions to public inspection set forth in KRS 61.878(1)(a)-(i), 1 with the exception of those noted in the concluding sentence of the provision, 2 when an open records request is submitted by a public agency employee for "any record . . . that relates to him." We believe that that decision is dispositive of the present appeal.
The cover sheets which Dr. Mooneyhan elected to withhold "identify[] . . . the individual teachers making the assessments . . .," and are an integral part of the evaluation. They "relate to" the public agency employee being evaluated, and must be made available for that employee's review. KRS 61.878(3) is broadly worded to include just such documents. We recognize that release of the cover sheets disclosing the names of the evaluators is likely to have a chilling effect on candor and frankness in the evaluation process. It is not for this Office, however, to comment on the wisdom of legislation, but to interpret and implement that legislation. We therefore direct the Shelby County Public Schools to release the cover sheets to Mr. Janes forthwith.
There is some indication in Dr. Mooneyhan's May 11, 1993, response that the cover sheets may have been discarded "pursuant to the evaluation plan." If the documents no longer exist, the Shelby County Public Schools obviously cannot afford Mr. Janes access to them. This Office has consistently recognized that a request for records which an agency does not have, or which do not exist, is moot, and cannot be honored. OAG 83-111; OAG 86-35; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; OAG 91-220; OAG 92-25. It should be noted, however, that KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Law.
Mr. Jones and the Shelby County Public Schools may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 KRS 61.878(1)(j) and (k) authorize nondisclosure of records made confidential by state or federal law and are not overridden by KRS 61.878(3).
No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.
The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.
2 KRS 61.878(3) provides in full:
No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.
The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.