Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the response of Eastern Kentucky Correction Complex (EKCC) to Mike Wilson's open records request for the following documents:
1. Previous grievances filed against sick abuse or later referred to as directed sick leave requirement since January 1, 1990.
2. Any grievances filed for denial of off days or shift change due to time and attendance since January 1, 1990.
3. Call-in log maintained by the Captain's office by all three shifts since January 1, 1997.
4. Time and attendance records for security staff on all three shifts for the past 12 months.
5. A listing of E.K.C.C. staff and job title.
6. A copy of the grievance filed by Bob Bailey for denial of shift change due to time and attendance.
7. A copy of the grievance filed by Wes Tobias for w-days concerning doctors excuses.
By letter dated January 25, 1999, Linda May, Personnel Director, EKCC, responded to Mr. Wilson's request. She denied the requests to inspect the previously filed grievances in requests # 1 and # 2. Relying upon KRS 61.878(1)(a) and (j), she explained the "release of documents containing medical information and that of a personal nature would result in an unwarranted invasion of grievant's privacy and contains respondent's opinions and preliminary observations." As an additional basis for denial, Ms. May, citing KRS 61.872(6), stated that production of these documents would place an unreasonable burden on the Personnel Office.
The request to inspect the call-in log, in request # 3, was partially denied. Citing KRS 61.878(1)(a), Ms. May indicated that certain information in the call-in log had been deleted. She explained that the column marked "reason" on the call-in sheets contained medical information and other information of a personal nature, the disclosure of which would result in an unwarranted invasion of employees' privacy.
The request to inspect the time and attendance records for security staff, in request # 4, was denied on the basis that the records contained information, such as social security numbers, medical information, and information of a personal nature, the disclosure of which would constitute unwarranted invasion of the personal privacy of EKCC security staff.
Mr. Wilson was provided with the list of EKCC staff and job title, which he requested in request # 5.
A copy of the Wes Tobias grievance was provided, with the employee's social security number on page one of the grievance deleted.
A copy of the Bobby Bailey grievance was provided with the following information deleted:
Pursuant to KRS 61.878(1)(a), the employee's social security number; and medical information in the supplemental response that did not need to be disclosed to third parties.
In the Deputy Warden's review of the grievance, references to specific time and attendance records were deleted as release would be an unwarranted invasion of privacy under KRS 61.878(1)(a).
The opinions and preliminary observations of the Deputy Warden were deleted, under authority of KRS 61.878(1)(j).
In the "continuation" of the grievance, information regarding employee matters and employee evaluations was deleted as release would result as an unwarranted invasion of the personal privacy of Mr. Bailey and others, under KRS 61.878(1)(a) and preliminary documents and opinions were deleted pursuant to KRS 61.878(1)(i) and (j).
Information of a personal nature and the originator of the document were deleted from the final supervisory review, pursuant to KRS 61.878(1)(a) and (j).
We are asked to determine whether the EKCC's response was consistent with the Open Records Act. For the reasons that follow, we conclude the response was consistent in part and inconsistent in part with the requirements of the Act.
We address first the requests, # 1 and # 2, for copies of previous grievances filed with EKCC, since January 1, 1990, against sick abuse (later referred to as directed sick leave requirement) and copies of previous grievances filed for denial of off days or shift change due to time and attendance. EKCC denied access to these records, in their entirety, on the basis they contained medical information and information of a personal nature the disclosure of which would result in an unwarranted invasion of grievant's privacy, pursuant to KRS 61.878(1)(a) and because they contain respondent's opinions and preliminary observations, pursuant to KRS 61.878(1)(j). EKCC further denied access to these records, pursuant to KRS 61.872(6), stating that to produce them would place an unreasonable burden on the Personnel Office.
Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, in order to facilitate our review of the agency's response, we requested from EKCC additional information and copies of these previous grievances to which Mr. Wilson was denied access under authority of KRS 61.872(6) and KRS 61.878(1)(a) and (j).
Our in camera review of these grievances reveals that, although there is certain information contained in each grievance file which might properly be masked, such as social security numbers, under KRS 61.878(1)(a), and information related to the grievant's evaluation and opinions of the evaluator, under KRS 61.878(1)(j), they remain public records of a public employee's grievance against a public agency action and the agency's handling of that grievance, which this office has held to be subject to public disclosure and scrutiny. 97-ORD-152.
In 97-ORD-152, we noted that the courts and this office have long recognized that complaints against public agencies, public officers, and public employees are not exempt from inspection after final action is taken, or the decision is made to take no action, under either KRS 61.878(1)(i) or (j). City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 660 (1982);Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 830 S.W.2d 373 (1992); 94-ORD-27 (and OAGs cited therein). In City of Louisville , at page 660, the Court of Appeals observed, "Inasmuch as whatever final actions are taken necessarily stem from [the complaints], they must be deemed incorporated as part of those final determinations." In finding an employee grievance analogous to a complaint, we stated, at page 9:
We believe that grievances are synonymous with complaints and subject to disclosure under the same logic. The term "grievance" is defined as "a complaint based . . . on a circumstance regarded as just cause for protest," Webster's II New Riverside University Dictionary , p. 548; "a complaint filed by an employee regarding conditions and for resolution of which there is procedural machinery provided," Black's Law Dictionary 632 (West, 5<th> ed 1979); "an injury, injustice or wrong which gives ground for complaint because it is unjust, discriminatory, and oppressive." Id. Thus it can be said that whatever final actions are taken on the grievances, including the decision to take no action, those grievances must be deemed incorporated into final action and made available for public inspection along with the notification of final action (or of the decision to take no action).
We conclude EKCC has failed to substantiate a proper basis for a denial of access to these grievances files in their entirety, particularly the grievance, notification of final action, and any other records which were incorporated into or made a part of the agency's final action.
Moreover, an agency can properly withhold a record under KRS 61.878(1)(a) only if it can establish that "the subject information is of a 'personal nature' . . . [and that] public disclosure would constitute a clearly unwarranted invasion of personal privacy. " Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994) citing Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky. 826 S.W.2d 324 (1992). "This latter determination," the court observed in Zink :
entails 'a comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The basis for denial must therefore be "articulated in terms of the requirement of the statute." OAG 89-20, p. 3.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof in sustaining its action imposed on the agency under KRS 61.880(2)(c). Although EKCC identifies the general nature of the information withheld, i.e., illness or personal medical information, it does not explain how disclosure of this information would constitute a clearly unwarranted invasion of personal privacy, justifying denial of the grievance files in their entirety.
Accordingly, we conclude that withholding disclosure of the grievances in their entirety constituted a violation of the Open Records Act. Unless EKCC can articulate a basis for denying access to particular grievances or portions thereof in terms of the requirements of KRS 61.878(1)(a), KRS 61.878(1)(j), or other applicable provisions of KRS 61.878(1), it must provide these records for Mr. Wilson's inspection.
Further, we find that the agency failed to substantiate with "clear and convincing" evidence how providing copies of these grievances would place an undue burden on the agency. KRS 61.872(6). It is incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records. EKCC does not indicate the number of records implicated by Mr. Wilson's request, the locations at which they might be stored, or the difficulty in accessing those records. In the absence of any evidence supporting this bare allegation that "production of these documents places an unreasonable burden on the Personnel Office," we are left with no alternative but to conclude that the grievance records are readily available within the agency.
Next, we address EKCC's partial denial of Mr. Wilson's request for the call-in log. The agency provided the log, but deleted information from the column of the log marked "reason." The basis for this blanket redaction was that this column contained medical information and information of a personal nature exempt under KRS 61.878(1)(a).
This office has held in the past that medical records, including psychological and psychiatric evaluations, contain highly private information, and that their release would normally constitute an unwarranted invasion of privacy. OAG 92-10. However, routine call-in log reasons, such as sick, cold, doctor's appointment, late arrival, etc., would not be information in which the employee would normally have an expectation of privacy.
As to this set of records, EKCC failed to justify its blanket denial of access to the entire "reasons" column of the call-in log. In its denial of Mr. Wilson's request, EKCC did little more than recite the language of the exemption and state the "reasons" column contained medical information and other personal information. In our view, EKCC failed to establish that release of any or all of the information contained in the "reasons" column was of such a highly private nature, that its release would constitute an unwarranted invasion of personal privacy or why the employees' privacy interest is superior to the public's interest in disclosure in the attendance and work habits of public employees. Under these facts, Mr. Wilson should be provided with a copy of the call-in log with only those portions of the "reasons" column redacted in which EKCC can substantiate that employees' privacy interest is superior to the public's interest in disclosure.
Next we address EKCC's denial of Mr. Wilson's request for access to the time and attendance records for security staff. This request was denied on the basis the records contained personal information, such as social security numbers, medical information, and other information of a personal nature, under authority of KRS 61.878(1)(a).
In addressing access to a public agency's time and attendance records, this office, in OAG 90-34, stated:
This office has long held that payroll records of public employees, including those of local public agencies are subject to public inspection. OAG 82-233; 86-38; 88-13; 90-30. We believe that just as the public is entitled to know how much a public employee is being paid from public coffers, so is the public (and the media) entitled to inspect time records of public employees to evaluate the basis of public expenditures for salary. We believe a governmental record regarding employee time and attendance, in relation to which public monies are expended, cannot be considered as being entirely of a personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy. A time and attendance record (e.g., work schedule, time card, sick leave claim, etc.,) operates as a bill or claim for public monies. Such records cannot be properly treated, as a whole, as being information of a personal nature, disclosure of which would constitute an unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
EKCC's time and attendance records of security staff, in relation to which public monies are expended, cannot be considered as being entirely of a personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy, under KRS 61.878(1)(a). EKCC's response failed to substantiate a proper basis for a blanket denial of Mr. Wilson's request to inspect these records. Thus, those records should be made available for his inspection. Redaction of confidential information, such as social security numbers, home addresses, e.g., may be carried out, if necessary, under authority of KRS 61.878(4).
We address, next, the records of the grievances of Wes Tobias and Bobby Bailey. Mr. Wilson was provided with redacted copies of each.
In the Tobias grievance, the social security number of Mr. Tobias was redacted pursuant to KRS 61.878(1)(a). This was proper and consistent with the Open Records Act and prior opinions of the courts and this office. Zink, supra; 97-ORD-66.
In the Bailey grievance, EKCC masked, pursuant to KRS 61.878(1)(a), the employee's social security number; and medical information in the supplemental response; references to specific time and attendance records in the Deputy Warden's review of the grievance were deleted under KRS 61.878(1)(a) and opinions and preliminary observations of the Deputy Warden were deleted, under authority of KRS 61.878(1)(j); information regarding employee matters and employee evaluations was deleted from the "continuation" of the grievance under KRS 61,878(1)(a); and information of a personal nature and the originator of the document were deleted from the final supervisory review, pursuant to KRS 61.878(1)(a) and (j).
We have reviewed both unredacted and redacted copies of Mr. Bailey's grievance file and the Final Determination of the grievance by Doug Sapp, Commissioner, Department of Corrections.
In the Final Determination, Commissioner Sapp reaches the following conclusion in regards to Mr. Bailey's grievance:
Based on my review of the responses you received at the various supervisory levels in the grievance process, I find no legitimate reason to alter those decisions.
This represents the final level of the grievance process within the Department of Corrections.
If predecisional documents are incorporated into final agency action, they are not exempt. This is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. The court reasoned:
It is the opinion of this court that subsections [i] and [j] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police. Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent. City of Louisville, supra at 659. In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection.
With the exception of the redaction of Mr. Bailey's social security number and the reference to employee evaluation ratings Mr. Bailey received for employee conduct, we find that EKCC improperly redacted information contained in Mr. Bailey's grievance file. As noted above, the Commissioner, in reviewing Mr. Bailey's grievance, referenced the responses to his grievance at the various supervisory levels and incorporated them as a basis for his final determination. Accordingly, we conclude that EKCC improperly redacted the opinions and conclusions reached by the Warden and his staff in their review of the grievance, which were referenced and adopted by the Commissioner in his Final Determination, which represented final agency action.
Mr. Bailey's social security number and his employee evaluation ratings were properly masked under KRS 61.878(1)(a), (i), and (j). This office 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, 99-ORD-42 and the decisions cited therein. 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. 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.
In our view, the evaluation ratings do not appear to be directly related to the grievance against agency action resulting from sick leave abuse. However, any claim of an unwarranted invasion of the personal privacy of Mr. Bailey is undermined by the fact that Mr. Bailey provided Mr. Wilson with an unredacted copy of his (Mr. Bailey's) grievance file.
Finally, EKCC stated that, under the Americans with Disabilities Act (ADA), an employer is unable to ask about sick leave or use. EKCC argues that to require release of the same information under an open records request would nullify the aegis provided by the ADA for the same information. However, the agency neither cites nor quotes a federal statute which supports this proposition and, thus, make the information exempt from the Open Records Act through the application of KRS 61.878(1)(k). We conclude EKCC has not established that the requested records are exempt from disclosure under the ADA.
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.