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 Fayette County Public Schools properly relied on KRS 61.878(1)(j) in denying Lewis E. Wiggens's June 15, 1999, request for a copy of the evaluation of the Henry Clay baseball program which Fayette County Public Schools' High Schools Director Ken Cox requested from Henry Clay High School Principal Diane W. Woods. For the reasons that follow, we find that the Fayette County Public Schools reliance on the cited exception was partially misplaced, and that FCPS has an obligation to release the nonexempt portions of the evaluation, consisting of statements of fact, after redacting the exempt portions, consisting of expressions of opinion.
In her June 17, 1999, response to Mr. Wiggens's request, Elizabeth J. Fugazzi, Assistant to the Superintendent of the Fayette County Public Schools, notified Mr. Wiggens that the requested records were excluded from public inspection by KRS 61.878(1)(j) as "preliminary recommendations and preliminary memoranda in which opinions are expressed." This position was confirmed, following submission of this open records appeal, in a letter to the Attorney General authored by Virginia W. Gregg, General Counsel to the Board of Education of Fayette County. To facilitate our review, Ms. Gregg furnished this office with a copy of the June 8, 1999, evaluation prepared by Ms. Woods. Having examined this document, we conclude that FCPS's reliance on KRS 61.878(1)(j) to support nondisclosure of the evaluation was partially inconsistent with the Open Records Act.
The General Assembly has determined "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed , even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871 (emphasis added). In construing this provision, the Kentucky Supreme Court has declared that "the unambiguous purpose of the Open Records Act is the disclosure of public records . . . [and] an extensive mechanism has been created for the exercise of the right of inspection. . . ." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) cited in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 470 (1997). The Court has further noted that in analyzing the Act "we are guided by the principle that 'under general rules of statutory construction, we may not interpret a statute at variance with its stated language.'" Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) citing Layne v. Newberg, Ky., 841 S.W.2d 181, 183 (1993). Nevertheless, "from the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality." Beckham at 578. With these principles in mind, we turn to the exception relied upon by the Fayette County Public Schools to support its denial of Mr. Wiggens's request.
KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendation. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24. The underlying purpose of the exception is analyzed at page 4 of OAG 88-85:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
Because performance evaluations of public employees are, in general, an expression of opinion, and do not represent final action by a public agency, the Attorney General has traditionally taken the position that they may be withheld pursuant to KRS 61.878(1)(j). See, e.g., OAG 77-394 (university professor) ; OAG 78-738 (university professor) ; OAG 79-348 (teacher) ; OAG 80-58 (policeman); OAG 82-204 (university professor) ; OAG 82-211 (university professor) ; OAG 86-15 (teacher) ; OAG 89-90 (teacher) ; OAG 91-62 (branch manager); 92-ORD-1375 (university professor) ; 94-ORD-54 (city auditor); 94-ORD-132 (university department chairperson); 96-ORD-256 (school principals); 99-ORD-42 (city employee). The only information to which the public is entitled is information relating to the action which the agency takes in light of the evaluation.
Moreover, the Attorney General has recognized that, pursuant to KRS 61.878(1)(a), both the evaluator and the person being evaluated have a substantial privacy interest in the evaluation which generally outweighs the public's interest in disclosure. 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 a decreased expectation of privacy in the document).
The purpose for which both KRS 61.878(1)(j) and (a) were enacted are not served by nondisclosure of a fact-based memorandum concerning a high school baseball program. Personal privacy interests are rarely, if ever, implicated when the subject of the memorandum is a sports program. Having examined the memorandum, which is loosely characterized as an "evaluation," we conclude that it is not "a subjective expression of opinion but an objective report of . . . facts." OAG 80-596, p. 3; see also, 96-ORD-32 (health department inspection report); 97-ORD-183 (list of unclaimed property owners); 99-ORD-27 (records documenting criminal victimization). Without disclosing the actual contents of the record, we note that it consists, almost entirely, of findings of fact relative to the program. Only the first sentence of paragraph one, and the final sentence of paragraph three, can properly be characterized as subjective expressions of opinion. In light of the rule of construction, codified at KRS 61.871, that the exceptions are to be strictly construed, and thus given no broader application than is necessary to effectuate their purposes, we find that the Fayette County Public Schools' reliance on KRS 61.878(1)(j) to authorize nondisclosure of Ms. Wood's memorandum in its entirety, was misplaced. The memorandum is not evaluative in nature, but is, instead, an objective report of facts. Pursuant to KRS 61.878(4), FCPS must "separate the excepted and make the nonexcepted materials available for examination."
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.