Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decisions
The question presented in this open records appeal is whether the Kentucky State Police properly relied on KRS 61.878(1)(g) in partially denying Trooper Michael L. Clines's May 11, 1998, request for "the evaluations from his superiors and all other documents relating to that evaluation which was recently performed." This request was submitted to KSP by Mr. Cline's attorney, William Norment, Jr., following a series of unsuccessful attempts by Mr. Cline to secure the documentation. For the reasons that follow, we affirm KSP's denial of Mr. Cline's request, but note certain procedural irregularities in its responses.
In the period between February 13, 1998, and May 11, 1998, Mr. Cline and his attorney submitted four separate requests for those records to KSP. Mr. Cline's February 13 request apparently went unanswered, prompting him to resubmit his request on February 20. On behalf of KSP, Major Don Weedman, Commander, West Branch, responded to Mr. Cline's second request on February 26, advising him that the evaluation questionnaire "is a confidential document and is not for review." Major Weedman did not elaborate.
On May 4, Mr. Cline's attorney, Mr. Norment, submitted a similar request to KSP on his client's behalf, citing KRS 61.878(3). Shortly thereafter, Major Weedman contacted Mr. Norment to notify him that he is "not the Custodian of Records for the Kentucky State Police." Major Weedman identified KSP's custodian of records as Diane Smith, and furnished Mr. Norment with Ms. Smith's mailing address. On May 11, Mr. Norment resubmitted his client's request to Ms. Smith, again relying on KRS 61.878(3). On May 13, Ms. Smith partially denied his request. Ms. Smith provided Mr. Cline with a copy of his "last Review for Sergeant evaluation," but explained to him that "the method used for the evaluation is not subject to the Kentucky Open Records law and the request . . . is denied pursuant to KRS 61.878(1)(g)"
KSP erred in failing to respond to Mr. Cline's requests in writing, and within three business days, and in failing to include a statement of the specific exception authorizing partial nondisclosure of the requested records and a brief explanation of how the exception applied to the records withheld. Although Mr. Cline's and Mr. Norment's first three requests were not directed to KSP's custodian of records, they were formally presented to the agency as records requests and should have been forwarded to Ms. Smith for immediate and proper response. This omission resulted in an undue delay in the transmission of the nonexempt records which were responsive to his request, and in notification of the basis for denying him access to the exempt records which were responsive to his request.
As we have so often noted, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. It is incumbent on KSP to streamline its open records policies by educating its employees on the importance of insuring a timely response to a records request. To the extent that Mr. Cline was denied timely access to the nonexempt records he sought and timely notice of the basis for KSP's decision to withhold the exempt records he sought, we find that KSP violated the procedural requirements of the Open Records Act. Nevertheless, we affirm KSP's partial denial of Mr. Cline's request for the following reasons.
By virtue of rights granted by KRS 61.878(3), Mr. Cline is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to him." KRS 61.878(3) provides:
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.
Thus, as a public agency employee Mr. Cline is endowed with a broader right of access to records relating to him than the public's general right of access to those records. Records which would otherwise be shielded from disclosure by one or more of the exemptions found at KRS 61.878(1)(a) through (j) as to a third person, must be made available to Mr. Cline if they relate to him.
There are, however, four exceptions to a public agency employee's broad right of access to his own records. A public agency employee is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Nor is the employee entitled to inspect or to copy " any examination or any documents relating to ongoing criminal or administrative investigations by an agency." KRS 61.878(3) (emphasis added). By its express terms, KRS 61.878(3) authorizes public agencies to withhold examinations of any kind or character from the public employee to whom they relate.
In denying Mr. Cline's request, KSP relied not on the exclusionary language found in KRS 61.878(3), but on KRS 61.878(1)(g) which excludes from public inspection:
Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again[.]
As noted, this exception, which is actually narrower in scope than the exclusionary language in KRS 61.878(3), is inapplicable to public agency employees since it, like the other exceptions codified at KRS 61.878(1)(a) through (j), cannot "be construed to deny, abridge, or impede the right of [such an] employee . . . to inspect and to copy any record . . . that relates to him."
While we therefore cannot affirm KSP's denial of Mr. Cline's request on the basis of KRS 61.878(1) (g), we find that the exclusionary language in KRS 61.878(3) supports its position. We reject Mr. Cline's argument that the disputed record cannot be characterized as an examination. It is his position that the record is a "questionnaire . . . filled out by two of [his] supervisors evaluating [his] job performance for the past year," and that it "will never be taken again." Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing" , and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc. of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional ratings scale. Weighing a doubt against a certainty, we conclude that Mr. Cline's broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination.
This position finds support in OAG 92-80 in which this office affirmed the Jefferson County Division of Human Resources' denial of a request for a "Training and Experience Rating Score" used in the hiring process. At page 4 of that decision, we noted that the prohibition on release of a rating scale "is prompted by a concern that candidates who have been afforded access to [it] will be given a unfair advantage in the application process." We concluded:
While this Office has never had occasion to rule on the precise issue raised in this appeal, it is our opinion that the rating scale, which can be characterized as an inactive examination, falls squarely within the parameters of the exception to Open Records codified at KRS 61.878(1)[(g)]. This provision has been the subject of three previous opinions of this Office, none of which are dispositive of this appeal. However, in both OAG 86-2 and OAG 87-56, we recognized that test questions, which will be used again, are excluded from public inspection. Whether classified as a "scoring key" or "other examination data," we believe that the training and experience rating scale was properly withheld pursuant to KRS 61.878(1)[(g)].
OAG 92-80, p. 4; see also, OAG 87-56 (holding that KRS 61.878(1)(g) authorized nondisclosure of test questions in the SRI Teacher Perceiver Interview which was part of teacher selection); OAG 92-5 (holding that agency properly invoked KRS 61.878(1)(g) in anticipation of request for standards of tests administered to county employee).
KSP's statement that release of the rating scale "would jeopardize the promotional testing procedures, and require development of a new rating device" suggests another basis upon which access to the scale can be denied. Although there is no catch-all exemption in the Open Records Act for records the disclosure of which would impede important government operations, the Attorney General has recognized:
that a public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies.
95-ORD-121, p. 8. We need not decide whether disclosure of the Promotional Rating Traits/Characteristics Booklet at issue in this appeal implicates these concerns, thereby warranting invocation of KRS 61.872(6), since KRS 61.878(1)(g) prohibits access to the rating scale by the general public, and the exclusionary language of KRS 61.878(3) prohibits Mr. Cline's access to it as an examination which relates to him.
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.