Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State University properly relied on KRS 61.878(1)(a) and KRS 61.878(1)(i), incorrectly cited as KRS 61.878(1)(h), in denying Robert K. Landrum's March 17, 1997, request for letters of interest and vitae of persons interviewed for the position of associate professor in KSU's business department. Through its general counsel, Harold S. Greene, Jr., KSU agreed to release the vita of the person hired for the position, but refused to furnish Mr. Landrum with any of the letters of interest and the vitae of persons not hired for the position. It was KSU's position that disclosure of these records would constitute "an unwarranted invasion of privacy. " Moreover, KSU argued, the records "represent correspondence with private individuals." While we agree with KSU that it is not obligated to disclose letters of interest and vitae of unsuccessful applicants, we find that in addition to the vita of the applicant hired for the position, KSU is also obligated to release the letter of interest written by that applicant.
This office has recognized that the applications of unsuccessful applicants for public employment are excluded from public inspection by KRS 61.878(1)(a) which authorizes nondisclosure of records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In OAG 89-90, we observed:
Regarding current or former employees (as distinguished from applicants not selected or hired) inspection of information [which appears on an application for public employment and which is] reasonably related to qualifying for a public position . . . does not involve the release of information of a personal nature such that public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In OAG 90-113, we expressly opined that applications and resumes submitted by unsuccessful applicants for employment are exempt from inspection or copying under the Open Records Law pursuant to KRS 61.878(1)(a). See also, 95-ORD-38.
At pages 2 and 3 of 96-ORD-1, we discussed the logic which underlies these opinions. It is instructive to quote from 96-ORD-1:
These opinions were premised on the reasoning found in Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984). Holding that the Freedom of Information Act, 5 U.S.C.A. 552, compels disclosure of information pertaining to the employment histories of successful applicants for federal employment, but precludes disclosure of other applications, the Fourth Circuit Court of Appeals identified the privacy interests at stake. Recognizing that the identities of applicants selected for positions are known, and that disclosure that they wished to leave their former employment cannot embarrass them since this fact is also known, the court reasoned that the release of their applications "would cause but a slight infringement of their privacy. " Core at 948. Continuing, the court observed:
In contrast, the public has an interest in the competence of people the [federal government] employs and its adherence to regulations governing hiring. Disclosure will promote these interests.
Core at 948.
Turning to the issue of the unsuccessful applicants, the court concluded that "the balance tips the other way." Core at 948. At page 949, the court stated:
In contrast to the lack of harm from disclosure of the applications of persons who are hired, disclosure may embarrass or harm applicants who failed to get a job. The present employer, co-workers, and prospective employers, should they seek new work, may learn that other people were deemed better qualified for a competitive appointment.
Although the court did not comment on it, the unsuccessful employees might also be embarrassed by disclosure that they wished to leave their present employment.
Against these significant privacy interests, the court weighed the minimal public interest in disclosure, observing:
Disclosure of the qualifications of people who were not appointed is unnecessary for the public to evaluate the competence of people who were appointed.
Core at 949. Indeed, the court noted, "comparisons of all applications may be misleading, because the appointments were made on the basis of both the applications and the interviews." Core at 949.
In a footnote, we advanced an additional reason why disclosure of the identities of unsuccessful applicants would not serve the public interest. Citing an Arizona decision, we recognized that because disclosure might be embarrassing and harmful to an applicant's career, it might also prove detrimental to the hiring process, "resulting in lesser qualified but thicker skinned, persons applying." Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348, 352 (1991). We adopted the court's reasoning that the public's interest in ensuring the public agency's ability to attract the most qualified applicants was more compelling than its interest in the names of all applicants.
Based upon these precedents, we conclude that KSU properly denied Mr. Landrum's request for the vitae of unsuccessful applicants for the teaching position in its business department. We reach the same conclusion regarding letters of interest submitted by those applicants. While we agree with Mr. Greene that KSU is obligated to disclose the vita of the applicant chosen for the position, we believe that the University is also obligated to release that applicant's letter of interest, if one exists.
Although we are aware of no specific precedent for the view that a successful applicant's letter of interest is open to public inspection, we believe that its disclosure involves the same interests as disclosure of applications and resumes of successful applicants. In balancing these interests, characterized in Core , above at 948, as "a slight infringement of [the successful applicant's] privacy" and the public "interest in the competence of people the [public agency] employs and its adherence to regulations governing hiring, " we believe that the public interest is superior to the applicant's privacy interest. Like an application or resume, the letter of interest will most likely contain "the type of information every applicant seeks to bring to the attention of a prospective employer" to demonstrate his qualification for the position. Core , above at 948. We also note that letters of resignation written by public employees are subject to inspection based on the principle that the privacy exception only applies to matters which are unrelated to public business. OAG 81-345; OAG 85-136; 94-ORD-108. If the applicant chosen by KSU to fill the teaching position in its business department submitted a letter of interest, along with his vita, that letter must also be disclosed.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.