Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this open records appeal is whether the Revenue Cabinet, Department of Property Valuation, properly relied on KRS 61.878(1)(a) in denying Fairis S. Peck access to records relating to the Property Valuation Administrator Qualifying Examination which was given on October 8, 1997. Specifically, Mr. Peck requested access to records reflecting the number of examinations administered to Menifee County candidates, and the names of people from Menifee County who took the examination. Mr. Peck is the current Menifee County Property Valuation Administrator, and wishes to obtain this information for purposes of determining whether he will seek re-election in 1998. For the reasons which follow, we find that the Department of Property Valuation properly denied Mr. Peck's request for the names of people who failed the examination, pursuant to KRS 61.878(1)(a), but improperly denied his request for the number of examinations administered to Menifee County candidates. In a follow-up letter to this office dated November 26, 1997, the Department elaborated on its position. Commissioner Mike Haydon explained that although the Department would release records reflecting the number of people who took the examination statewide and the names of people who passed, it would not release records reflecting the names of people who failed the test or the number of people who took the test in a particular county. The Department relied on KRS 61.878(1)(a) and the reasoning contained in OAG 90-113, relating to the identities of unsuccessful applicants for public employment, in denying the request. Commissioner Haydon maintained that disclosure of the identities of people who failed the examination, like disclosure of unsuccessful applicants for public employment, would constitute a clearly unwarranted invasion of personal privacy. We agree.
The specific question presented in this appeal is not altogether new or novel. In OAG 79-58, the Attorney General held that the results of a licensure examination were exempt under KRS 61.878(1)(a), but that records showing those who passed the examination and were issued a license were not exempt. In OAG 90-142, we revisited this issue holding that although the public must be afforded access to enough information to verify that an applicant for licensure meets the minimum requirements established by the licensing agency, "test scores . . . may remain private." OAG 90-142, p. 7. Both of these decisions predated
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), in which the Kentucky Supreme Court established a test for determining the propriety of a public agency's reliance on KRS 61.878(1)(a). Applying the Board of Examiners test to the facts of this appeal, we find that the Department properly relied on KRS 61.878(1)(a) in denying Mr. Peck access to the names of people from Menifee County who failed the qualifying examination, and agreeing to release the names of people who passed the examination.
In Board of Examiners , above, the Supreme Court recognized that although the Open Records Act exhibits a general bias favoring disclosure:
A plain reading of subsection (1)(a) reveals an unequivocal legislative intention that certain records, albeit they are "public," [footnote omitted] are not subject to inspection, because disclosure would constitute a clearly unwarranted invasion of personal privacy.
Board of Examiners at 327. Continuing, the Court observed:
Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of antagonistic interests.
Id. In a subsequent decision, the Kentucky Court of Appeals firmly established that the only relevant public interest to be considered "is the extent to which disclosure would serve the principle purpose of the Open Records Act. "
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 828 (1994). "At its most basic level," the Zink court opined, "the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink at 829. This position echoed the Supreme Court's view that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. . . ." Board of Examiners at 328. The Zink court also established the principle that the privacy analysis "does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink at 828. It is, therefore, the nature of the record which is determinative. If it is determined that disclosure of a public record to one requester does not constitute a clearly unwarranted invasion of personal privacy, the same record must be made available to all requesters, including the merely curious.
Clearly, an individual who fails a qualifying examination for the office of property valuation administrator has at least some expectation of privacy in his examination results. Right or wrongly, the fact of his failure may cast doubt on his overall professional competence, is likely to have an adverse impact on his career, and may result in personal embarrassment. We therefore find that records containing this information are of a personal nature, and that people who fail the P.V.A. qualifying examination have a legitimate privacy interest in their test results.
We must next determine if the public's interest in disclosure of the names of people who failed the examination is superior to this privacy interest. While the public has an unquestionable right to know that candidates for the office of P.V.A. have satisfied the requirements of KRS 132.380 by successfully completing the qualifying examination administered by the Revenue Cabinet, we can envision no corresponding public interest in the identities of people who were unsuccessful in completing the examination. People who fail the examination cannot be certified as qualified to run for the office of property valuation administrator, or to serve the public in this capacity. Because disclosure of this information "would do little to further the citizens' right to know, " and the competing privacy interest in nondisclosure is strongly substantiated, we conclude that release of the names of people who failed the P.V.A. qualifying examination would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). Zink at 829. We therefore affirm the Department of Property Valuation's partial denial of Mr. Peck's request.
The fact that Mr. Peck intends to use the information to reach a decision relative to his candidacy for P.V.A. of Menifee County, and not "to humiliate or intimidate anyone," has no bearing on our conclusion. As we have noted, the requester's identity and purpose are irrelevant to the privacy analysis. Zink , above; OAG 76-716; OAG 90-142. Since it is the nature of the record which is controlling, if we determined that Mr. Peck could review the records, all requesters for the information would enjoy the same right to inspect. Because the unsuccessful examinees' privacy interest in nondisclosure of the test results is clearly superior to the virtually nonexistent public interest in disclosure, we conclude that no one is entitled to access this information.
The Department of Property Valuation took the same position with respect to the number of examinations administered to Menifee County candidates. Although the Department agreed to release the number of people who took the examination statewide, it was unwilling to disclose the information on a county by county basis. Relying on KRS 61.878(1) (a), the Department argued:
If the Department were to disclose, for example, the number of persons who took the test in Menifee County, someone might be able to discern who the applicants were based upon local knowledge. Many times there will be interested persons standing near the entrance of each test site solely for the purpose of determining who has taken the exam from a particular county. With this information, they will be able to determine who has failed by comparing their list of names with the County Clerk's list of persons who passed. While the Department has no control over this local practice, it can ensure that the information is not disclosed at the state level.
Whether the Department properly denied this portion of Mr. Peck's request is a closer question. Although KRS 61.878(2) provides that no exemption in the Open Records Act should be construed to prohibit disclosure of statistical information, such information can be withheld if it is descriptive of a readily identifiable person. While it may be true that through extensive investigation, personal observation, and deductive reasoning, an individual could determine who sat for the examination from his county, and who failed, we believe that it is a stretch to maintain that the same weight must be attached to the examinees' privacy interest in the number of people who took the examination. In general, such information is nothing more than statistical data which would not be descriptive of any readily identifiable person.
Conversely, we believe that there is a weightier public interest in the number of people who sit for the examination in a county, given KRS 132.380's emphasis on insuring that more than one person is qualified to be a candidate in each county. Admittedly, neither of these interests is of great weight. However, because the Open Records Act exhibits a bias favoring disclosure, and the public's interest in the number of people sitting for the examination from their county is slightly greater than the examinees' privacy interest, we find that the Department of Property Valuation improperly relied on KRS 61.878(1)(a) in denying this portion of Mr. Peck's request. Assuming that the Cabinet has compiled a record in which the number of people sitting for the P.V.A. qualifying examination is broken down by county, we conclude that Mr. Peck must be afforded access to this record.
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.