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 appeal is whether the City of Henderson violated the Open Records Act in denying Donnie Coomes's request for access to various records relating to the evaluations of city employees. For the reasons that follow, we find that the city properly denied Mr. Coomes's request, and that its response was substantially consistent with the Act.
On February 3, 1999, Mr. Coomes requested access to:
1) information relating to city employee evaluations including information developed by the committee formed to revise the evaluation process and documents that may have been introduced to the city commission before the adoption of the current evaluation form;
2) minutes of any commission meeting at which the city employee evaluation process, form, or payment was discussed or approved;
3) all city employee evaluations from July 1, 1998, to the present including any overdue evaluation that may be incomplete.
The City of Henderson responded to Mr. Coomes's request, through city attorney Joseph E. Ternes, Jr., in a letter dated February 8, 1999. Mr. Ternes denied each of Mr. Coomes's requests explaining:
The request contained in the first paragraph of your letter must be denied pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j). Any documents which fall within the category of those you have requested regarding the development of the City's employee evaluation form would constitute preliminary materials and are, therefore, exempt from disclosure under the above cited statutes.
In regard to the request contained in the second paragraph of your letter for minutes of meetings of the City commission relating to the employee evaluation process, a search has been made for any such minutes and none can be found.
Finally, the request you made in the third paragraph of your letter for all City employee evaluations from July 1, 1998 to present must also be denied pursuant to the provisions of KRS 61.878(1)(a) and KRS 61.878(1)(i). The first cited statute exempts records containing information of a personal nature where public disclosure would constitute an invasion of privacy; and the second cited statute exempts preliminary materials from disclosure.
Personal evaluations contain matters of opinion and do not represent final action on the part of the City and, consequently, are not subject to public disclosure as they are preliminary in nature.
Dissatisfied with the city's response, Mr. Coomes initiated this appeal. He challenged the city's argument that documents generated by the evaluation committee are preliminary, noting that the committee "developed a system the city has adopted either by ordinance or administrative policy," and that the documents are therefore final. In addition, he questioned the city's position that no minutes of meetings at which "evaluation process, form, or payment" were discussed could be located, noting that since "evaluations include raises for city employees[, the subject] certainly would be included in any budgetary meeting." Finally, he rejected the city's argument that city employee evaluations are excluded from inspection as preliminary memoranda in which opinions are expressed, noting that "evaluations include pay raises for employees [and] there for constitutes a final action [sic]."
In a supplemental letter to this office, Mr. Ternes offered additional support for the city's denial of Mr. Coomes's request. Mr. Ternes reaffirmed the city's position on the issue of access to "information developed by the committee formed to revise the evaluation process. " He observed:
It is the City's position that if any documents exist which constitute "information developed by the Committee," they are preliminary in nature and are exempt under KRS 61.878(1)(j). . . .
With respect to "minutes of commission meetings where the city employee evaluation process, form, or payment was discussed . . .," Mr. Ternes reiterated that no such minutes could be found. He commented:
Given the care which the Henderson city clerk devotes to the keeping of the City Commission's minutes, it is concluded that such requested minutes do not exist. If they did, Mr. Coomes would be granted complete access to them for inspection and copying.
As additional support for the city's argument that access to city employee evaluations is prohibited by operation of KRS 61.878(1)(i) and (j), Mr. Ternes cited 96-ORD-51, 94-ORD-132, and 94-ORD-108. In light of Mr. Coomes's letter of appeal, and in particular his comments concerning minutes of budget meetings, Mr. Ternes agreed to afford him "complete access to meeting minutes regarding the current or past years' budgets, " including the budget documents themselves. It is the opinion of this office that the City of Henderson's response was largely consistent with the Open Records Act.
We examine the last category of records requested by Mr. Coomes first, namely evaluations of city employees from July 1, 1998, to the present. As the city correctly observes, the Attorney General has traditionally taken the position that the evaluations of public employees are excluded from public inspection by operation of KRS 61.878(1)(a), (i), and (j). See, for example, OAG 77-394 (university professor) ; OAG 78-738 (university professor) ; OAG 79-348 (teacher) ; OAG 80-58 (policeman); OAG 82-204 (university professor) ; OAG 86-15 (teacher) ; OAG 89-90 (teacher) ; OAG 91-62 (branch manager); 92-ORD-1375 (university professors); 93-ORD-17 (university professors); 94-ORD-132 (university department chairperson); 96-ORD-256 (school principals). These decisions were premised on the notion that an evaluation is a matter of opinion and does not represent any action on the part of the agency. Accordingly, the only records to which the public is entitled access are records relating to the action which the agency takes in light of the evaluation.
Moreover, we have recognized that both the evaluator and the person being evaluated have a substantial privacy interest in the evaluation which generally outweighs the public interest in inspecting the record. This privacy interest is premised on the recognition that "disclosure of . . . evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee." 92-ORD-1145, p. 4. The public's interest in inspecting evaluations of rank and file employees is correspondingly reduced since these employees do not directly control the management and operation of a public agency. Compare, 92-ORD-1145 (performance evaluation of school system superintendent is subject to disclosure because his performance has a direct bearing on the management of the school system and he has decreased expectation of privacy in the document). With rare exception, the Attorney General has affirmed public agency denials of open records requests for employee evaluations. We find no error in the City of Henderson's denial of this portion of Mr. Coomes's request.
Turning to the issue of the city's response to his request for minutes of commission meetings at which the city employee evaluation process, form, or payment was discussed or approved, we find that the City of Henderson properly denied this request on the basis that the requested minutes do not exist. The city again correctly notes that the Attorney General has consistently held that a public agency cannot afford a requester access to records which do not exist or cannot be located. OAG 83-111; OAG 87-54; OAG 91-112; 93-ORD-95; 93-ORD-134; 94-ORD-142; 96-ORD-88; 99-ORD-4. As we observed at page 5 of OAG 86-35, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the person seeking to inspect such documents."
However, since July 1994, when the Open Records Act was substantially amended, we have applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the records. The City of Henderson provides sufficient proof that an adequate search was conducted to locate responsive records, but that the search was nonproductive. The city clerk reviewed minutes of commission meetings for a lengthy period of time and was unable to locate any minutes at which the evaluation process, form, or payment was discussed. Despite the fact that it yielded no results, this was the search method which could reasonably be expected to produce the records requested. 95-ORD-96, p. 7. The Open Records Act does not require the City of Henderson to do more.
In light of Mr. Coomes's letter of appeal, and the new records access issues raised therein, the city has agreed to afford him access to minutes of meetings which relate to current or past years' budgets, along with the budget documents themselves. Again, the Open Records Act does not require more.
Finally, we find that the City of Henderson properly denied Mr. Coomes's request for "information developed by the committee formed to revise the evaluation process . . . prior to the adoption of the currently used evaluation form" on the basis of KRS 61.878(1)(i) and (j). These provisions exclude from public inspection:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In an early opinion, this office analyzed the rationale underlying these exceptions:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2. Only if predecisional documents are incorporated by the public agency into final agency action do they forfeit their preliminary status.
Although we agree with the city that memoranda containing recommendations that were never adopted and forms that were never approved may properly be characterized as preliminary documents, within the meaning of KRS 61.878(1)(i) and (j), we believe that it is incumbent on the city to determine if responsive records exist, and if they do not, to specifically so indicate. OAG 90-26, p. 4; see also OAG 91-101 and OAG 86-38. It is not enough, in our view, to advise the requester that " if any documents exist," they are exempt. As with the records described above, the city must conduct a search using the method which could reasonably be expected to produce the records requested. In all other material respects, we affirm the City of Henderson's denial of Mr. Coomes's request.
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.