Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(a) in partially denying June Britton's February 15, 2000, request to inspect all employment applications of all LexCall Division employees, and all employment applications "for the three top-ranked persons for the recent open Mail-Clerk position." For the reasons that follow, and based on the authorities cited, we affirm LFUCG's partial denial of Ms. Britton's request.
In a response dated February 23, 2000, LFUCG corporate counsel Glenda Humphrey George advised Ms. Britton that the employment applications of all LexCall employees would be made available to her for inspection, but that portions of the applications would be redacted on the basis of KRS 61.878(1)(a). Ms. George maintained that disclosure of employee home addresses, home telephone numbers, dates of birth, work references, salaries at previous places of employment, drivers' license numbers, and social security numbers would constitute a clearly unwarranted invasion of the employees' personal privacy, and that this information would be withheld. Ms. George also denied Ms. Britton access to the applications of the unsuccessful applicants for the mail clerk position, including "education experience" and "letters of reference, " on the basis of KRS 61.878(1)(a) and 95-ORD-38. Finally, Ms. George refused to disclose test scores and oral interview ratings on the basis of KRS 61.878(1)(a). This appeal followed.
In her letter of appeal, Ms. Britton questions how work references, education experience, letters of reference, test scores, and oral interview ratings can be withheld. It is her position that LFUCG could avoid violating the privacy rights of LexCall employees by masking the employees' names. She suggests that the information be disclosed in the following manner:
Applicant A - Score 84 with accompanying job references, education level (A.B. degree), Experience (five years as a secretary, two years switchboard, etc.)
Ms. Britton notes that her goal is to compare her qualification to those of LexCall employees currently working as mail clerks, and that she did not request "names, addresses, []or personal data."
In a supplemental response directed to this office, Ms. George elaborated on LFUCG's position. Responding to Ms. Britton's criticism of LFUCG's denial of her request for work references, she explained:
In 93-ORD-32, the Attorney General opined that the names of references were not exempt but that letters of reference were exempt from public inspection pursuant to KRS 61.878(1)(i). The names of supervisors at previous places of employment, which were listed on the applications, were not redacted. However, the work references contained in the Government employment files are forms completed by each reference and therein opinions are expressed about the applicant. These forms are exempt from public inspection pursuant to KRS 61.878(1)(a).
To facilitate this office's review, Ms. George furnished us with a copy of the LFUCG work reference form. Relying on 95-ORD-38 and KRS 61.878(1)(a), Ms. George also defended LFUCG's decision to withhold the applications, including education, experience and letters of reference, of the unsuccessful applicants.
Ms. George acknowledged that the application of the successful applicant for mail clerk was a public record, but insisted that LFUCG's decision to redact personal information from the application was correct. In support of LFUCG's decision to withhold test scores and oral interview ratings, she relied on KRS 61.878(1)(a) as interpreted in 96-ORD-33. We believe that the authorities cited are dispositive of the issues Ms. Britton raises, and affirm LFUCG's partial denial of Ms. Britton's request.
LFUCG relies on KRS 61.878(1)(a) in denying Ms. Britton access to those portions of LexCall employee applications containing personal information such as home addresses, home telephone numbers, dates of birth, salaries received from previous employers, drivers' license numbers, and social security numbers. KRS 61.878(1)(a) authorities public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
In construing this provision, the Attorney General has observed:
KRS 61.878(1)(a) "applies . . . to matters entirely unrelated to the performance of public employment" OAG 78-133, p. 3. "The private rights of the public employee extend . . . to matters which are not related to the performance of his work." OAG 80-43, p. 3. Paraphrasing the court's holding in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App. 625 S.W.2d 109 (1981), in OAG 85-88 we stated that "much of the information found in . . . personnel folders deals with items and facts of a personal nature and no public interest would be served by complete disclosure. " OAG 85-88, p. 2.
97-ORD-66, pp. 6,7. On this basis, the Attorney General has affirmed agency denial of access to a public employee's home address, home telephone number, date of birth, and social security number. See, for example, OAG 79-275; OAG 87-37; OAG 90-60: OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public duties, and the employee's privacy rights outweigh the public's interest in disclosure. Although the Attorney General has not had occasion to address the issue in an open records decision, we find that this logic can generally be extended to drivers' license numbers and salaries received from previous employers (unless those employers were public entities).
Conversely, the Attorney General has recognized a public agency's duty to disclose employment applications and resumes of their employees because those documents disclose relevant prior work experience, educational qualifications, and information relating to the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717; OAG 87-37; OAG 91-41; OAG 91-48; OAG 92-59; 93-ORD-32, 94-ORD-26. At page 3 of 93-ORD-32, we noted that "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information it outweighed by the public's right to know that that employee is qualified for public employment. " In releasing redacted copies of LexCall employees' applications, LFUCG fully discharged its duties under the Open Records Act.
With respect to Ms. Britton's request for the names of references and the actual letters of reference, LFUCG relied on 93-ORD-32. There, the Attorney General observed:
"A person's name is personal but it is the least private thing about him . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, p. 3. Although the public's interest in disclosure of the reference submitted by a public employee is less compelling then its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that [an agency] must release the names of references appearing on job applications and related documents.
We do not mean to suggest that [an agency] must release letters of reference submitted on behalf of its employees. In OAG 91-48, we expressly declined to extend the reasoning of OAG 89-90 to letters of reference. There, we held that inspection of letters of reference could be denied pursuant to KRS 61.878(1)[i], which exempts from public inspection "correspondence with private individuals."
93-ORD-32, p. 4. Based on the reasoning articulated in this decision, we conclude that LFUCG properly released the names of employee references, and properly withheld letters of reference and work reference forms. The latter documents are the functional equivalent of letters of reference, insofar as they are generated by the employee's reference for the same purpose as an individually authored reference letter, and enjoy the same protection from disclosure.
We further find that LFUCG properly denied Ms. Britton access to the employment applications of the unsuccessful applicants for the recently filled mail clerk position. This denial finds support in 95-ORD-38 and numerous other decisions of this office. For example, in 97-ORD-72, the Attorney General held that applications and resumes submitted by unsuccessful applicants are exempt from inspection and copying under the Open Records Law pursuant to KRS 61.878(1)(a). See also OAG 90-113 and 96-ORD-1. At page 2 and 3 of 97-ORD-72, we observed:
These opinions were premised on the reasoning found in Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984). Holding that the Freedom of Information Act, 5 U.S.C.A. § 552, compels disclosure of information pertaining to the employment histories of successful applicants for federal employment, but precludes disclosure of other applications, the Fourth Circuit Court of Appeals identified the privacy interests at stake. Recognizing that the identities of applicants selected for positions are known, and that disclosure that they wished to leave their former employment cannot embarrass them since this fact is also known, the court reasoned that the release of their applications "would cause but a slight infringement of their privacy. " Core at 948. Continuing, the court observed:
In contrast, the public has an interest in the competence of people the [federal government] employs and its adherence to regulations governing hiring. Disclosure will promote these interests.
Core at 948.
Turning to the issue of the unsuccessful applicants, the court concluded that "the balance tips the other way." Core at 948. At page 949, the court stated:
In contrast to the lack of harm from disclosure of the applications of persons who are hired, disclosure may embarrass or harm applicants who failed to get a job. The present employer, co-workers, and prospective employers, should they seek new work, may learn that other people were deemed better qualified for a competitive appointment.
Although the court did not comment on it, the unsuccessful employees might also be embarrassed by disclosure that they wished to leave their present employment.
Against these significant privacy interests, the court weighed the minimal public interest in disclosure, observing:
Disclosure of the qualifications of people who were not appointed is unnecessary for the public to evaluate the competence of people who were appointed.
Core at 949. Indeed, the court noted, "comparisons of all applications may be misleading, because the appointments were made on the basis of both the applications and the interviews. " Core at 949.
We see no reason to depart from this view. As an additional reason why disclosure of records of unsuccessful applicants would not serve the public interest, this office has recognized that because disclosure might be embarrassing and harmful to an applicant's career, it might also prove detrimental to the hiring process, "resulting in lesser qualified but thicker skinned persons applying." 97-ORD-72, p. 3 citing
Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348, 352 (1991). We find that the public interest in ensuring the public agency's ability to attract the most qualified applicants is more compelling than its interest in records relating to unsuccessful applicants, and that the unsuccessful applicant's privacy interests are paramount to both. We affirm LFUCG's denial of Ms. Britton's request for applications of unsuccessful applicants for the mail clerk position.
Finally, we affirm LFUCG's denial of Ms. Britton's request for test scores and oral interview ratings. LFUCG asserts, and this office has recognized, that an applicant for public employment has a cognizable privacy interest in test scores and examination results when those scores or results are disclosed in conjunction with the applicant's name or personally identifiable information. See, for example, OAG 78-382; OAG 78-468; OAG 80-158; OAG 90-142; OAG 91-41; OAG 91-155; 92-ORD-1190; 92-ORD-1238; 96-ORD-33. In the absence of a superior public interest in disclosure, such records may be with held pursuant to KRS 61.878(1)(a). LFUCG properly denied this portion of Ms. Britton's request.
In closing, we note that Ms. Britton proposes the release of the information in a sanitized fashion aimed at protecting the identities of employees and unsuccessful applicants. In essence, she asks that LFUCG create a list of employees and applicants identified by letter or number, rather than by name, along with the information she seeks, so as to avoid violating individual privacy rights. LFUCG does not maintain such a list, and the Open Records Act does not require it to create one. See, for example, OAG 89-61, p. 4 (holding that "one does not have a right under the Open Records provisions to require that a particular list be made"); OAG 76-375; OAG 88-79; 96-ORD-33. LFUCG fully discharged its duties under the Act by releasing redacted copies of responsive records in its possession, and explaining the basis for denial of portions of those records in terms of the requirements of the statute. KRS 61.880(1); KRS 61.878(4).
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.