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 University of Kentucky properly relied on KRS 61.878(1)(a) in issuing a blanket denial of William C. Jacobs's September 11, 1998, request to inspect "the most recent two performance evaluations issued by the President for each of the chief administrative officers identified in [the official organizational chart showing the University offices that report directly to the office of the University President]." For the reasons that follow, and upon the authorities cited, we find that although the University erred in issuing a blanket denial of Mr. Jacobs's request, an error subsequently acknowledged, it properly relied on KRS 61.878(1)(a) in withholding those portions of the disputed documents that are purely evaluative in nature.
In its September 18, 1998, 1 response, the University of Kentucky, through its official records custodian George J. DeBin, asserted that "performance evaluations are exempt from disclosure pursuant to KRS 61.878(1)(a)." Mr. DeBin explained:
The Attorney General has opined numerous times that, for example, in 95-ORD-32, ". . . a public employee's right of privacy in evaluative records, and that of the evaluator, is superior to the public's interest in disclosure, and that what the public is entitled to know is what action is taken in light of the evaluation." Also see 94-ORD-108, which states that, ". . . the public's interest in disclosure of evaluations is in general outweighed by the public employee's privacy interest as well as the privacy interest of the evaluator. " Also see 92-ORD-1145 which says, ". . . an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation."
On this basis, Mr. DeBin denied Mr. Jacobs's request in its entirety.
In his letter of appeal, Mr. Jacobs argues that the University's response is deficient in two significant respects. First, he maintains that a blanket denial of his request is improper, and indeed is not supported by existing authority. He cites 94-ORD-108 and 94-ORD-62 for the proposition that "there is not a per se exemption, in toto , to each and every part of a performance evaluation. " It is Mr. Jacobs's position that:
The parts of the record that identify (e.g., by signature) who performed the evaluation (here, the President, as even UK has admitted into the public record) as well as the identity of the subject public officer (here, the named cabinet staff officers, as UK has also admitted into the public record) , must be severed and released since the University has already admitted those parts, thereby waiving any personal privacy to that information, if such privacy interest even existed. Further, the several lines of any withheld record that show the procedures or criteria per se that were utilized, or the enumerate [sic] job activities performed by the individual, must also be released, as you so clearly stated in 94-ORD-62. The dates on the documents further reveal the procedure without revealing the deliberative substance of the evaluations, and must be released.
In its June 28 supplemental response to Mr. Jacobs's appeal, the University acknowledges its error in issuing a blanket denial of his request. Mr. DeBin advises us that "it has now been determined that redacted evaluations should have been provided as asserted by Mr. Jacobs. . .," and indicates that such evaluations have been furnished to Mr. Jacobs.
We believe that this is the correct result. Our position finds support in 94-ORD-62, in which the Attorney General held that pursuant to KRS 61.878(4), 2 the severable and nonexempt portions of an employee evaluation, meaning those portions which are not evaluative in nature, must be disclosed. "Although we cannot imagine what possible interest the sanitized [evaluations] hold [] for [Mr. Jacobs]," since by his own admission they reveal nothing more than already disclosed facts relating to the preparation of the evaluations (identity of evaluator, identity of individual evaluated, criteria used, individual's assigned duties, and dates), these portions of the evaluations "cannot be said to implicate a significant privacy interest. " 95-ORD-32, p. 6.
Mr. Jacobs identifies as the second deficiency in the University's response its failure to provide "a specific explanation of why the public's interest in the particular agency records at issue concerning that particular agency employee would be a 1) clearly 2) unwarranted 3) invasion of 4) personal privacy. " Relying on 92-ORD-1145, he maintains that the job descriptions of each administrative officer "easily rise to the level of importance established by the Attorney General as tipping the scales in favor of the public's interest to inspect the record." Mr. Jacobs notes that:
each high officer at issue performs various functions to 'establish policy,' to render final 'approval,' or 'affirmation' on a university contract or actions with external agencies, to be responsible for public 'safety,' to 'represent' the university position to external agencies, even rendering the 'institutional vote' of the university, or, even arranging the duties of the office of the President itself and performing those duties in the President's absence. By these measures, the public's interest in how well these public officers are performing these broad university operations, or of how well they represent and speak for the public's agency, 'the university,' as a whole to external agencies, easily surpasses any claim to personal privacy on the evaluations of these officers.
To substantiate his position, Mr. Jacobs furnishes this office with selected portions of the job descriptions of the University's athletics director, general legal counsel, vice-president for administration, assistant to the vice-president for fiscal affairs, chancellors of sectors, special assistant to the president for university relations, special assistant to the president for academic affairs, vice-president for information systems, vice-president for research and graduate studies, and vice-president for management and budget. With respect to these administrators, he asserts that each has "been delegated the final University-wide responsibility to make University-wide policy to render final University-wide decisions, and/or to represent the University as a whole to external agencies."
Mr. DeBin responds that "each of these UK administrators reports to a higher official in charge of the agency (in this case, the University of Kentucky president, who is the one person who is 'ultimately responsible for the management' all [sic] aspects of the University of Kentucky)." He likens the positions of these administrators to the positions of the school principals at issue in 96-ORD-256. Each reports to a higher official, the UK administrators to the president of the University, and the school principals to the superintendent. Neither is "the top-level administrator of an agency . . .." For these reasons, Mr. DeBin argues, "their privacy interests, like those of other public employees who are not chief executive officers, outweigh any value to the public of knowing how these individuals have been evaluated by the agency head."
We affirm the University of Kentucky's decision to withhold those portions of the disputed records which are evaluative in nature. Our decision is grounded in some twenty-two years of open records law in which this office has recognized the rights of public agencies to deny access to public employee performance evaluations, and from which it "has departed on only the rarest of occasions." 96-ORD-275, p. 2.
In a line of decisions dating back to 1977, the Attorney General has held that the privacy rights of public employees in information of a personal nature that appears in a performance evaluation generally outweighs the public's interest in disclosure of the evaluation. OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90; 92-ORD-1375; 94-ORD-54; 94-ORD-132; 96-ORD-51; 96-ORD-275; 99-ORD-14; 99-ORD-42. In 92-ORD-1145, we departed from this position, declaring that the performance evaluation of a school system superintendent was subject to disclosure. This decision was premised on the notion that the public's interest in reviewing those portions of the superintendent's evaluation which have a direct bearing on the management of the school system is superior to the reduced expectation of privacy in that document which the superintendent might have. At page 4 of that decision, we expressly declined to extend this reasoning to rank and file public employees, noting:
We do not, in so holding, establish a rule of general application vis-a-vis performance evaluations. Nor do we depart from any opinion previously issued by this Office. [Footnote omitted.] Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. Our decision is limited to the facts presented in this case.
We affirmed this holding in 92-ORD-1375, declaring that anonymous evaluations of professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a), and in 94-ORD-54, declaring that a city auditor's evaluation is exempt because she is not "'ultimately responsible for the management' of the City of Louisville." 94-ORD-54, p. 4. We again affirmed this position in 94-ORD-132, concluding that the evaluation of a chairman of a university department, although of great public interest, could properly be withheld pursuant to KRS 61.878(1)(a) because the chairman's privacy interests were superior to the public's interest in disclosure.
These decisions were premised on the privacy analysis developed by the
Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992). In that opinion, the court articulated the following standard for determining if a record may properly be excluded from inspection pursuant to KRS 61.878(1)(a):
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 the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Board of Examiners at 327-328. In closing, the court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity ...."
In an even more recent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). At page 328 of that opinion, the court discussed its "mode of decision":
Our analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination 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.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved. The court reasoned:
We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. Of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75. 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners, supra, "the public's right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. The court thus established a bright line test for determining if a public agency's invocation of the privacy exception was proper on the facts presented: If disclosure of the requested record would not advance the underlying purpose of the Open Records Act, namely exposing agency action to public scrutiny, then countervailing interests, such as privacy, must prevail. 95-ORD-151.
As noted, this office has long ascribed to the view that a public employee has a cognizable privacy interest in records of an evaluative nature which relate to him or her which is generally superior to the public's interest in those records. And, as noted, the Attorney General has departed from this view on only the rarest of occasions. See, 92-ORD-1145 (dealing with performance evaluation of school system superintendent) ; OAG 90-1 (dealing with the annual evaluation of the chief of the Louisville Police Department, and turning on the existence of a city ordinance directing publication of the evaluation). On these rare occasions, we have scrupulously attempted to avoid establishing a general requirement of disclosure vis-a-vis performance evaluations.
In 94-ORD-54, we declined to extend the reasoning of 92-ORD-1145 to the job evaluation of a city auditor. In 94-ORD-132, we declined to extend that reasoning to the five year review of the Chairman of the University of Louisville's Department of Ophthalmology. In 96-ORD-256, we declined to extend that reasoning to administrative evaluations of school district principals. And, in 96-ORD-275, we declined to extend that reasoning to the job performance evaluations of two high ranking city employees. Resolution of these appeals turned on the line of precedents reaching back to 1977, and this office's recognition that "if changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court." OAG 80-54, p. 4. In sum, we have consistently resisted efforts to extend the holding in 92-ORD-1145 to any other public officer or official.
We reach the same result in this appeal. Obviously, these administrators cannot be characterized as rank and file public employees. Nor, however, can they be characterized as the individuals who are "ultimately responsible for the management of the [agency which they serve]." Although authority is necessarily delegated to each of them by the president of the university to discharge a management function, it is the president, and not his subordinates, who occupies the leadership role, and it is he who is "ultimately responsible." In view of the importance of the positions they occupy, and the duties they discharge, the administrators' expectation of privacy in their evaluations may be reduced, but it is not entirely forfeit. Conversely, the public's interest in their performance, although heightened, is not clearly superior to their privacy interest, as Mr. Jacobs argues. Here, as before, we find that the question of whether the public's interest outweighs the university administrator's privacy interest must be answered in the negative. Accordingly, it is our opinion that the University of Kentucky properly withheld the evaluative portions of the disputed records pursuant to KRS 61.878(1)(a).
In closing, we note that the University's response was not deficient, but instead contained sufficiently "particular and detailed information" in response to Mr. Jacobs's request.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Although that request related to eleven university administrators, and although Mr. Jacobs attempted to establish each administrator's importance in the university hierarchy by selective reference to their duties and responsibilities, we do not believe it was incumbent on Mr. DeBin to defend nondisclosure of each administrator's evaluation by specific reference to these duties and responsibilities. The University furnished Mr. Jacobs and this office with more than a "limited and perfunctory response," id. , by demonstrating that these administrators are not " ultimately responsible for the management" of the University of Kentucky, that 92-ORD-1145 is inapposite, and that their privacy interest in nondisclosure of their evaluations is superior to the public's interest in disclosure.
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.
Footnotes
Footnotes
1 We note that for some unexplained reason, the University's response was not issued within three business days. Although we will not belabor the issue, we remind the University that failure to respond in writing, and within three business days, constitutes a procedural violation of the Open Records Act.
2 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.