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 Kentucky High School Athletic Association violated the Open Records Act in partially denying Bill Straus's November 30, 1999, request for:
(1) all "Top 25" and all "Scratch" lists for the 10<th> and 11<th> basketball regions which are in the possession of the Assigning Secretary for the Bluegrass Basketball Association; 1 and (2) all evaluation records in the possession of the Assigning Secretary for the Bluegrass Basketball Association in which [Mr. Straus's] name appears.
For the reasons that follow, we affirm the KHSAA's partial denial of Mr. Straus's request.
In a response dated December 6, 1999, KHSAA Commissioner Louis Stout partially denied Mr. Straus's request on the basis of KRS 61.878(1)(a). "Without conceding the issue of whether the KHSAA is a public agency that is subject to the provisions of the Open Records Act, " Commissioner Stout argued:
Disclosure of the order in which [KHSAA] member schools rank, or elect to scratch, sports officials for selection to officiate their athletic contests would have a chilling effect on the game official selection process. In other words, member schools would refuse to rank or scratch game officials if the officials are given access to such rankings due to the objectively reasonable concern that assignment of either a high, low or moderate ranking could affect a game officials [sic] impartiality in officiating contests involving the ranking school in question.
In an attempt to accommodate Mr. Straus's request, Commissioner Stout furnished him with statistical data reflecting the number of schools on whose "Top 25" and "Scratch" lists his name appeared. Commissioner Stout did not reveal the identity of the schools. With respect to Mr. Straus's request for all evaluation records in the custody of the Assigning Secretary for the Bluegrass Basketball Association in which his name appears, Commissioner Stout indicated that all such records had previously been disclosed to Mr. Straus.
In a supplemental response directed to this office, KHSAA attorney Roger G. Wright elaborated on Commissioner Stout's position. He explained that "Top 25" and "Scratch" lists:
refer to documents voluntarily completed for the [Bluegrass Basketball Association] by some, but not all, of the boy's and girl's [sic] varsity basketball coaches for the KHSAA member schools within the 10<th> and 11<th> regions. The purpose of these lists is to allow coaches to rank from # 1 - # 25 [footnote omitted] their preference of [Bluegrass Basketball Association] game officials to officiate their contests, and to "scratch" ( i.e. , to disallow) up to seven game officials from officiating their contests. These lists assist [the assigning secretary] in completing his task of assigning game officials to officiate specific boy's and girl's [sic] varsity basketball games within the 10<th> and 11<th> regions.
It was Mr. Wright's position that disclosure of the lists would "severely compromise" the selection process inasmuch as "no reasonable high school coach will rank game officials with the knowledge that these officials may later be called upon to officiate their school's games and make the close judgment calls that could effect the outcome of games."
Additionally, Mr. Wright argued that the "Top 25" and "Scratch" lists were excluded from public inspection pursuant to KRS 61.878(1)(j) as preliminary recommendations in which opinions are expressed. "The very act of a coach in electing to rank or scratch a game official," Mr. Wright explained, "constitutes the expression of an opinion by the coach. . . ." The ultimate decision-making authority rests with the assigning secretary who relies on the lists as an aid in assigning game officials. We find these arguments persuasive, and affirm the KHSAA's partial denial of Mr. Straus's request.
Our analysis of the applicability of KRS 61.878(1)(a) to the "Top 25" and "Scratch" lists turns on the well-established presumption that records of an evaluative nature contain personal information, and that disclosure of such records constitutes a clearly unwarranted invasion of personal privacy in the absence of a superior public interest in inspection of the records. Having weighed the competing interests at stake in this open records dispute, we conclude that although there is a remote public interest in disclosure of the lists, that interest is inferior to the privacy interests of the evaluators, here the coaches, and the individuals evaluated, here the officials. Further, we conclude that the lists reflect a subjective expression of the coaches' opinions which are protected from disclosure by KRS 61.878(1)(j) unless incorporated into final action of a public agency.
On the issue of access to records of an evaluative nature, this office recently observed:
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:
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).
99-ORD-128, pp. 2, 3. These observations have a direct bearing on the appeal before us.
In postulating the public's interests in inspecting the "Top 25" and "Scratch" lists, we are guided by the decision of the Kentucky Court of Appeals in Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994). The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 829. The public's right to know is thus predicated on "the public's right to expect its agencies to properly execute their statutory functions." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Disclosure of the "Top 25" and "Scratch" lists would arguably enable the public to assess the performance of the assigning secretary in fairly and impartially factoring into officiating assignments the opinions of the coaches, and their expressed preferences.
Against this public interest, we weigh the competing privacy interest. As noted above, the Attorney General has long recognized that records of an evaluative nature contain information of a personal nature, and the privacy interests of the evaluator, as well as the person evaluated, have been accorded considerable weight. In the evaluative records at issue in this appeal, officials' performances are rated as high, moderate, or low, and in some instances the officials are entirely disallowed, or scratched, as unacceptable. Given the passions that competitive sports ignite, and the largely subjective nature of the duties these officials perform, we believe that records of an evaluative nature which relate to the officials warrant even greater protection than a typical evaluation. While we are not persuaded that a school is invested with privacy rights, we believe that both the evaluator and the person evaluated have a reasonable expectation of privacy in these records. It is the opinion of this office that the possibility that release of the "Top 25" and "Scratch" lists may ultimately further the public's ability to assess the assigning secretary's performance is too remote to overcome the significant invasion of personal privacy which disclosure would entail. "Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy. " United States Department of State v. Ray, 502 U.S. 164, 178-79 (1991). Accordingly, we affirm the KHSAA's denial of Mr. Straus's request to inspect these lists on the basis of KRS 61.878(1)(a). Because we find that KRS 61.878(1)(a) authorizes the KHSAA's denial of Straus's request, we do not address the applicability of KRS 61.878(1)(j) to those records except to note that this exception has also been deemed to authorize nondisclosure of records of an evaluative nature containing opinions and recommendations, unless those opinions and recommendations are incorporated into final action of a public agency.
In addition to the "Top 25" and "Scratch" lists, Mr. Straus also demanded all evaluations in the possession of the assigning secretary in which his name appears, contending that an earlier request was only partially satisfied. The KHSAA maintains that all responsive records have been released to Mr. Straus, and that it can produce no other records. In releasing Mr. Straus's evaluations to him, the KHSAA has acknowledged its duty under the Open Records Act, and discharged this duty. "This office cannot . . . adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 9. In the absence of evidence that the assigning secretary, or the KHSAA, is concealing records which are responsive to Mr. Straus's request, we must assume that the agency, and its employees, have acted in good faith. Here, as in OAG 89-81, we are hopeful that "any dispute regarding the records . . . can be worked out through patient consultation and cooperation between the parties." OAG 89-81, p. 9.
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 The Bluegrass Basketball Association is the local officials' association of the KHSAA for the 10<th> and 11<th> regions. Its assigning secretary, Jerry Pickrell, is responsible for assigning game officials to officiate athletic contests between the member schools within the region.